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Sulaiman Research Series No. i 



THE ALIGARH HISTORICAL RESEARCH 
INSTITUTE 

President 

THE HON'BLE JUSTICE SIR S. M. SULAIMAN, 

KT., LL.D., D.SC. 

General Secretary 

PROF. M. HABIB, B.A. (OXON.), BAR-AT-LAW. 

Chairman Managing Committee 

NAWAB SADR YAR JUNG BAHADUR. 

Vice-Chairman 

A. YUSUF ALI, C.B.E., M.A., LL.M., I.C.S. (RETD.) 

Treasurer 

KHAN BAHADUR MAULVI HAJI MUHAMMAD 
OBAIDUR RAHMAN KHAN SHERWANI, M.L.A. 

Editorial Board 

MUHAMMAD BASHEER AHMAD, M.A., M.LITT., 
(CANTAB.) F.R. HIST, s., i.c.s. Chairman. 

SIR ABDUL QADIR, KT., K.B., BAR-AT-LAW, 
LAHORE. 

A. YUSUF ALI ESQR., C.B.E., M.A., LL.M. (CANTAB.), 
i.c.s. (RETIRED). 

MAULANA SAIYAD SULAIMAN NADVI SAHIB, 
AZAMGARH. 

DR. SAIYAD MAHMUD, PH.D., EX-EDUCATION 
MINISTER, BEHAR. 

PROF. MUHAMMAD HAROON KHAN SHERWANI, 

M.A., (OXON), BAR-AT-LAW, F.R. HIST. S., 

OSMANIA UNIVERSITY, HYDERABAD, DAC- 

CAN. 

PROFESSOR A. B. A. HALEEM, B.A. (OXON.) ALI- 
GARH. 

SH. ABDUR RASHID, M.A., LL.B., (ALIG), ALIGARH 
Secretary. 



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Copy of judgment in Saiyad Ghulam Mohi 

Uddin w. Anbart, 1686 A.D. Baqiyat us 

Salehat, page 9. 



Aligath University Studies in History 

The Administration of Justice 
in Medieval India 

A STUDY IN OUTLINE OF THE JUDICIAL SYSTEM 
UNDER THE SULTANS AND THE BADSHAHS OF 
DELHI BASED MAINLY UPON CASES DECIDED 
BY MEDIEVAL COURTS IN INDIA BETWEEN 
1206-1750 A.D. 

By 

MUHAMMAD BASHEER AHMAD 
M.A.(ALIG.),M.LITT. (CANTAB.), F.R. HIST. s. (LONDON) 

INDIAN CIVIL SERVICE, U. P., AUTHOR OF THE 
PROBLEM OF RURAL UPLIFT IN INDIA 



PUBLISHED BY 
THE ALIGARH HISTORICAL RESEARCH INSTITUTE 

FOR 

THE ALIGARH UNIVERSITY 
1941 



PRINTED BY J. K. SHARMA AT THE ALLAHABAD 
LAW JOURNAL PRESS, ALLAHABAD 



CONSENTS 

PAGE 

PREFACE 7 

LIST OF ABBREVIATIONS . . . . . . 1 1 

NOTE ON SPELLING . . . . . . . . 15 

TABLE OF CASES . . .. .. .. 17 

PART I INTRODUCTORY 

Section I The subject-matter . . . . 25 

Section II The sources of information . . 36 

PART II THE TEXT 

Ch. I Conditions in Medieval India . . 57 
Ch. II Conception of Justice in Muslim 

States 65 

Ch. Ill Judicial system under the Sul- 
tans . . . . . . . . . . 96 

Ch. IV Judicial system under the Mu~ 

ghals .. .. ., .. .. 133 

Ch. V Procedure in Courts . . . . 176 

Ch. VI Rules of evidence . . . . 212 

Ch. VII- Tendencies in criminal adminis- 
tration . . . . 223 

Ch. VIII Prevention of crimes . . . . 232 
Ch. IX The working of the Judicial 

machinery 250 

Ch. X Summary and conclusions ; . 272 

APPENDICES 

The Sultans and the Badshahs of Delhi 286 



6 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

PAGE 

Bibliography 289 

Criminal regulations of Aurangzeb . . I 

Letters of appointment S 

List of Qazis of Parganah Jais (1565-1882) (T 

General Index . . . . . . . . 301 

ILLUSTRATIONS 

1. Copy of Judgment in Saiyad Ghulam 

Mohi Uddin vs. Anbart, 1686, A.D. 

Baqiat us Salehat p. 9 . . . . Frontispiece 

2. Executions . . . . . . . . 233 

3. Prison scene . . . . . . . . 247 



PREFACE 

This book is based on original sources some of 
which have not so far been utilised by any other author. 
The title owes its origin to a suggestion by the late 
Sir Thomas Arnold with whom the author was asso- 
ciated in this undertaking. The conclusions arrived 
at depend mainly for their support on the cases de- 
cided by the Muslim courts and either noted speci- 
fically by historians or discovered in the original. 
These judgments were collected by me from various 
sources during a period of research extending over 
several years. 

The book has been divided into two parts. Part 
I deals with the scope and the sources. Part II con- 
tains the main theme. Chapter I gives the general 
condition in Medieval India when the Muslim ad- 
ministration was first established. Chapter II surveys 
the conception of justice among the Rulers as inter- 
preted by their own Law Courts or themselves. The 
Judicial systems of the Sultans and the Badshahs (Mu- 
ghals) are given separately as there were alterations 
during the Mughal rule. In some cases the posts 
remained more or less the same but their duties had 
undergone changes. Anxiety not to omit reference 
to any of the various scraps of evidence which I have 
been able to gather, must be my excuse for what might 
be thought the disproportionate length of Chapters 
III and IV. 



8 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

The description of these two systems is followed 
by a discussion of the Law of Evidence and Procedure, 
tendencies in criminal administration, prevention of 
crimes which includes the Police organisation and lastly 
of the working of the entire judicial machinery. 

This work in the words of Professor Dicey is 
neither of a critic nor of an eulogist nor of an apolo- 
gist but simply of an expounder and is intended to 
introduce a subject hitherto neglected for further 
study and research. As the material on the subject- 
matter of this book is still scanty, a detailed critical 
examination of the system is neither within the 
scope of this book nor seems necessary at the present 
stage. 

I take this opportunity to express my gratefulness 
to the Hon'ble Sir S. M. Sulaiman, Kt., LL.D., Judge 
of His Majesty's Federal Court and Vice-Chancellor 
of the Aligarh University, who took so much interest 
in the preparation and the publication of this book. 

Mr. A. Campbell, a distinguished member of the 
I.C.S. and formerly Judge, Punjab High Court, took 
considerable pains in going through the several 
chapters of this book and offered valuable sugges- 
tions. 

Sir Hari Singh Gour, D.C.L., LL.D., D.Litt. 
and Mr. A. Yusuf Ali, C.B.E., M.A., LL.M., I.C.S. 
(Retd.) revised this book and very kindly offered sug- 
gestions at various stages. 

Nawab Mirza Yar Jang Bahadur, Chief Justice, 
Hyderabad High Court (now President, Judicial 
Committee of H.E.H. the Nizam's Government) very 
kindly permitted me to inspect the High Court record 



PREFACE 9 

room and to obtain copies of valuable records for 
reference. He also placed at my disposal his whole 
library of valuable books and MSS. My thanks are 
also due to Mr. Khurshed Ali, Director, Diwani Office, 
Hyderabad for giving me an opportunity to examine 
the State archives and sending me copies of useful 
documents. 

To Saiyad Kalbe Abbas, M.L.C of Rae Bareli ] 
am indebted for assisting me in collecting the judg- 
ments in Baqiatus Salehat. 

Maulana Sulaiman Nadvi, President, Shibli Aca- 
demy, Azamgarh has placed me under a deep debt of 
gratitude by allowing me to utilize all the Persian and 
Arabic MSS. in the Academy at various intervals. 
Among other scholais I shall particularly wish to men- 
tion the name of Professor Habib of Aligarh who 
took great pains in revising the MS. and correcting 
a few errors. 

Mr. Abdur Rashid, M.A., LL.B., Secretary, 
Editorial Board, Aligarh Historical Research Institute, 
Mr. Abdus Salam, M.A., LL.B., Lecturer, Law 
Department, Aligarh University, Mr. V. D. Chatur- 
vcdi, M.A., LL.B. and Mr. Girja Prasad Mathur, 
Assistant Master, Government High School, Aligarh, 
helped me a great deal in correcting the proofs. 

Judge's House, Altgarh M. B. AHMAD 

January i, 1941 



LIST OF ABBREVIATIONS 



Al Beruni 
Ain-e-Akbari 

Akbar Namah 

Badaoni 

BaiUie 

Baqiat 
Barni 

Beveridge 

Bib. Ind. 
Briggs 

Br. Mus. MS. 
Collections 

C.U.L. 
Dow 



Tarikhul Hind, 2 Vols., Tr. by 

Sachau 
Persian Text. Bib. Ind., Vol. I. 

Translation by Blochman. Vol. 

II. Translation by Jarrett 
Persian Text by Abul Fad, Bib. 

Ind. 
Muntakhab ut Tawarikh, Bib. 

Ind. by Badaoni 
Digest of Moohummudan Law 

by Baillie 
Baqiat us Salehat 

Tarikh e Firoz Shahi by Zia Ud- 
din Barni, Bib. Indica. 

History of India, 2 Vols., C.U.L. 
by Beveridge 

Bibliotheca Indica Series 

Rise of the Mahomedan Power in 

India, 4 Vols. by W. Briggs 
British Museum Manuscript 

Collections of Diaries and Judg- 
ments in the Diwani Office, 
Hyderabad, Deccan 

Cambridge University Library 

History of Hindustan, 3 Vols. by 
Lt.-Col. A Dow, C.U.L. 



12 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 



Elliot 



Farameen 

Fatawa 

Fiqh 

Fryer 

Hamilton (Capt.) 



Hidayah 

LO.L. 
LO.L.MS. 
LO.L.Rec. 
K.C.C.L. 

Kennedy 
Khafi Klian 
Kitabul Ikhtyar 
Manu 

Manrique 
Mirat 

Monserrate 



History of India, As told by its 
own Historians 8 Vols. by Sir 
Henry Elliot and Dowson 

Farameen us Salatin by S. Bashir 
Uddin, Delhi 

Fatawa e Alamgiri 

Fiqh e Firoz Shahi MS., I.O.L. 

Travels by T. Fryer, 2 Vols. 
C.U.L. 

A New Account of the East Indies 
2 Vols. I.O.L. by Capt. Hamil- 
ton 

'Hedaya' Translation by Hamil- 
ton, published by Grady 

India Office Library 

India Office Library Manuscript 

India Office Library Records 

King's College Cambridge Li- 
brary 

History of the Great Moghuls by 
Pringle Kennedy, 2 Vols. LO.L. 

Muntakhab ul Lubab by Khafi 
Khan, 2 Vols., Bib. Ind. 

Islami Qanun e Faujdari, Azam- 
garh 

Manu Samhita. Tr. by Sir W. 
Jones 

Travels. 2 Vols. Hakluyt. C.U.L. 

Mirat e Ahmadi. 2 Vols. Sup- 
plement, Baroda 

Commentary. Edited by Hoy- 



ABBREVIATIONS 



R.A.S. 

Roe 

Sarkar 

Sarkar I, II, III 

Stewart 
Storia 

Tuzuk 
Waqae 



Royal Asiatic Society, London 
Embassy of Sir Thomas Roe by 

Foster 
Mughal Administration by Sir 

Jadunath Sarkar 
Vols. I, II and III. History of 

Aurangzeb by Sir Jadunath 

Sarkar 

History of Bengal by Stewart 
Storia du Mogor by N. Manucci. 

4 Vols. 
Tuzuk e Jahangiri by Saiyad 

Ahmad. Aligarh 
Waqae Alamgir by Ch. Nabi 

Ahmad. Allahabad 



N.B. In many of the MSS. for example MS. 
370 l.f. I.O.L. and 'Collections', neither the pages nor 
the folios are properly numbered. Effort has, there- 
fore, been made to quote other authorities as well 
where available. 



NOTE ON SPELLING 

In spelling foreign words in English I have tried 
to adhere to the exact word phonetically and have 
refrained from adopting the spellings used in some of 
the standard works wherein such questions do not 
seem to have been raised. For example, 1 the word 
Syed has been written as Saiyad, Hedaya as Hidayah, 
Mohammad or Mahomed as Muhammad, Qoran as 
Quran, Mogul as Mughal. 

The 'Izafat' in Persian which means c of ' has been 
shown by adding the letter V at the proper place 
instead of the usual V as in my opinion the sound of 
V expresses the connection more correctly as in 
Qanun e Shahi; Qazi-e-Subah, Mirat e Ahmadi. 

The letter j is written as Q as in Qazi, Tughlaq 
in preference to K. The last V (6) of Arabic and 
Persian words, where necessary, has not been omitted 
as the omission sometimes gives a different meaning, 
e.g., Hidaya and Hidayah. 

The word Shiqahdar has been spelt by some 
writers as Shiqdar. Barni writes it without *ah' 
but the 'tashdid' on c q' conveys a different sound from 
Shiqdar. The Mughals definitely used the w^ord 
Shiqahdar. The spelling of words like Firoz, Saiyad 
etc., given in various histories of India is erroneous. 



1 1 have retained Delhi instead of Dehli as there are a few 
small towns in India with this spelling and practically the 
whole English knowing world has accepted Delhi. 



TABLE OF CASES 

A 

Akbar Khan (suit against) Governor of Delhi 
Ali Raza and Afzal Ali v. Mir Wali. Baqiat, p. 18 
Ata Husain v. Ashiq Husain. Baqiat, p. 22 
Ausaf Ali's case, Baqiat, p. 28 
Azmat Ullah v. Ghulam Muhammad. Baqiat, p. 5 

B 

Babar v. Ali Muhammad. Baqiat, p. 12 
Bawahir v. Havildar Kalupur. Mirat II, p. 5 

C 

Case of Two men of Puran Varan (Collections) 

D 

Dara (complaint of) against Diwan-e-Ala (MS. 370 

I. f. 1.0. L.) 

Deshmit v. Faujdar (Collections) 
Dunia Murai v. Shaharnat Ali. Baqiat p. 25 

E 

E. L Co. (claim of) against State. Captain Hamilton 

I, p. 232 
E. I. Co. v. State. Islamic culture, 1928, p. 134 

G 

Gada Husain v. Fateh Alam. Baqiat p. 20 
Ghanshyam v. Mughal Noble. Sarkar, Aurangzeb IV 
p. 109 



1 8 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Ghulam Murtaza v. Waris. Baqiat, p. 15 

H 

Haji Zahid and Pirji v. Prince Murad. Khafi Khan II 

p. 251 

Haji Zahid and Pirji v. State. Khafi Khan II, p. 25 1 
Hamid Uddin v. Prince Kambux. Khafi Khan II, p. 437 
Hamira Bibi v. Zubaida Bibi. L. R. 43 I. A. P. 301, 

302 

Hamiyat Ali v. Gauri Shanker. Baqiat p. 32 
Hindu Clerk v. Mughal Soldier. Storia I. p. 203 

K 

Kartalab Khan (Complaint against). Storia II. p. 259 

Karva v. Sundar (Collections) 

Kashmiryan (Case of). Baqiat. Br. Mus. MS., 26, 

239 f. 16 
Kh\vaji Ahmad v. Ali Muhammad. Baqiat p. 10 

M 

Manucci v. Portuguese. Storia III. pp. 128-129 

Master v. Servant. Storia I. p. 201 

Matrimonial Case in the Court of Governor Parenda 

(Collections) 

Mir Wali v. Mushrif. Baqiat p. 22 
Mir2a Beg v. State. Khafi Khan II p. 257 
Muhammad Mohi Uddin v. Anbart. Baqiat p. 9 
Muhammad Tughlaq^. Shaikh Zada Jami. Badaoni I 

p. 239 (Bib. Ind.) 

Muhammad Wali v. M. Shahid. Baqiat p. 23 
Mohi Uddin v. Pir Ali. Baqiat p. 7 
Mohi Uddin v. Qazi Mansur. Baqiat p. 2 
Mst. Bibi Zadi v. Mir Wali. Baqiat p. 16 



TABLE OF CASES 19 

Mst. Feeta v. Miran, Baqiat p. i 

Muslim Woman v. Hindu Rajput. Storia p. 174 

N 

Nurullah v. M. Ullah. Baqiat p. 4. 

Nusrat Ali and others v. Qaim AH. Baqiat p. 21 

O 

Old Woman v. Muqarrab Khan. Tuzuk p. 83 

P 

Pan Seller Woman v. Prince Adill Shah. Erskine II, p. 
445 

Q 

Qazi Imdad Uddin (Case of) Elliot II, p. 349 

Qazi Khair Uddin (Case of) Baqiat p. 30 

Qazi Sadrul Mulk (Case of) Shams Siraj Afif, p. 473 

R 

Rajava Slave Girl's case. Storia III, p. 205 
Ram Rai v. Har Kishan. Sarkar III, p. 353 
Raziah's Murder Case. Elliot III, p. 593 

S 

Sadiq v. Shakur. Sarkar, Aurangzeb V, pp. 421-22 

Salabat Ali v. Wasit Ali. Baqiat p. 26 

Saiyad Bakar v. Mst. Batul. Baqiat p. u 

Saiyad v. Mian Malik. Elliot IV, p. 454, Kennedy I 

p. no 

Sher Muhammad v. State. Collections 
State v. Armenian. Fryer I, p. 244 
State v. Babaji (Collections) 

v. Babaji Deshmukh (Collections) 

v. Bindraban. Stewart, p. 410 



20 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

State v. Brahman. Elliot V, p. 543 
v. Budhan Brahman. Elliot VI, p. 187, Bever- 

idge I, pp. 101, 102 

p. Chabila Ram. Sarkar, Aurangzeb I, p. 174 
v. Chand Baksaryan (Collections) 
v. Daryai Khatun. Storia I, pp. 200-201 
v. Dxirga (Theft case) (Collections) 
v. Empress Nurjahan. Tuzuk-e-Jahangiri by 

Shibli, pp. 30-31 
v. Genoese. Storia I, p. 265 
v. Gujrati woman. Briggs II, p. 352 
v. Haibat Khan. Briggs I, p. 253 
v. Hushang. Tuzuk S. A. i6th year, p. 333 
v. Ibn Baqa Billa. Taskiratul Ulema, p. 5 3 
v. Islam Khan. Elliot IV, p. 26 
v. Jankar Khan. A. N. Ill, p. 32 (Akbar Namah) 
v. Kalyan. Elliot VI, p. 314 
v. Khorasani. Shams Siraj Afif, pp. 496-7 
v. Khusro and others. Timik (S. A.), p. 28 
v. Khwajah Ahmad. Shams Siraj Afif, p. 508 
v. Kotwal Said. Storia I, p. 197 
v. Lakshman Banjara (Collections) 
v. Madari Faqir (Collections) 
v. Malik Faiz. Briggs I, p. 253 
v. Manrique and Muslims. Manrique V, pp. 

109-112 

v. Manrique and others. Manrique II, pp. 137-8 
v. Manucci. Storia II, pp. 197, 198, 199 
v. M. Aqil. Waqae Alamgir, pp. 80-8 1 
v. Muhammad Said Kotwal. Storia I, p. 197 
v. Muhammad Tughlaq's son and others. Ibn 

Batuta. See p. 128. Dow I, p. 309 



TABLE OF CASES 21 

State v. Mir Murtaza. Khafi Khan II, p. 564 
v. Mirza Beg Kotwal. Khafi Khan, p. 257 

Vol. II 

v. Muqaddam. Mirat I, p. 49 
v. Mst. Balai (Collections) 
v. Mughal Soldier. Storia I, p. 203 
v. Muslims of Khandesh. Manrique II, p. 112 
v. Muslim Trade Commissioner. Monserrate, p. 

210 

v. Nawal. Elliot VI, p. 346 
v. Noble Woman. Roe, pp. 190-191 
v. Police Official. Safir-e-Oudh, pp. 90-91 
v. Potter. Storia I, p. 174 
v. Prince. Mirat I, p. 49 
v. Prince Adil Khan. Erskine II, p. 445 
v. Prince of Gujrat I, p. 49 
v. Qazi Jalal-uddin and another. Badaoni I, 

p. 171 

v. Qazi Mir. Storia IV, pp. 118-119 
v. Qutub Uddin Bohra. Sarkar, Aurangzeb III, 

p. 113 

v. Rae Rae Singh. Tuzuk (S. A.) p. 62 
v. Rukn Mahdi. Br. Mus. Ms. Or. 2309 f, 301 
v. Sarmad. Sarkar, Aurangzeb III, p. 113 
v. Sidi Maula. Barni, p. 211 
v. Sidi Maula. Beveridge I, p. 75 
v. Sidi Maula and others. Badaoni I, p. 171 

Elphinstone, p. 381, Beveridge, pp. 75-76, 

Barni, p. 211 

v. Seif Ala. Dow III, pp. 105-107 
v. Shah Mansur. Monserrate, pp. 98-99 
v. Shakur. Sarkar, Aurangzeb VI, pp. 421, 422 



55 
>5 
55 

5? 

55 



22 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

State v. Sh. Alai. Briggs II, p. 141 
v. Sh, Haidri and others. Ibn Batuta, p. 146 
v. Shiqahdar. Manrique I, pp. 424-425 
v. Son of Babaji (Collections) 
v. Sulaiman and others (Collections) 
v. Tahir. Sarkar, Aurangzeb III, p. 113 
v. Two thieves (Collections) 
v. Uddav and others. Sarkar, Aurangzeb III, p. 

330 

v. Vizir, Elphinstone (1857), p. 356 
v. Woman of Gujrat. Briggs II, p. 35 2 
v. Yaqub and Nairn. Briggs IV, p. 5 19 
v. Youth. Fryer, Travels I, p. 245 
v. Yusuf. Briggs IV, p. 517 
Subedar Deshmit v. Faujdar (Collections) 



Tarbiat Khan (Complaint of). Dow III, p. 173 
Theft case. Storia III, p. 128 

W 

Wahab v. Saiyad and others, Tuzuk S. A., p. 306. 
Wahab's Case. Tuzuk-e-Jahangiri, p. 306 
Wali v. Mushrif. Baqiat, p. 22 
Wazir's Case, Ibn Batuta, p. 147 
Widow v. Faujdar. Khafi Khan II, p. 5 50 
v. King Ghyas. Stewart, pp. 90-91 
v. Muqarrab Khan. Tuzuk (S. A.) p. 83 
Woman's Complaint. Storia III, p. 123 
Woman v. Prince Adil. Erskine, p. 445 
Woman v. Youth, Storia II, pp. 419-20 



PART I 
INTRODUCTORY 



SECTION I 
THE SUBJECT MATTER 

Imad Uddin Muhammad bin Qasim, a seventeen 
year old general, 1 was the first Muslim who made any 
conquest in India. Although his victory over the 
local ruler of Sindh in 712 A.D. established a Muslim 
Indian dominion and the invasions of Mahmud of 
Ghazna and Muhammad of Ghor in the nth and the 
1 2th centuries A.D. brought the Muslims into closer 
contact with the inhabitants of India, yet as they left 
the government of the country to the people who 
professed a different religion the Muslim institutions 
did not get any foothold in India properly until 
1206 A.D. 

It was in this year that Qutub Uddin Aibek, a slave 
of Muhammad Ghori, King of Ghor, consolidated 
his conquest of the whole of Northern India and laid 
there the foundation of the Muslim administrative 
system. 

This important year also marks the introduction 
of Islamic Law in India and of its judicial machinery 
on a permanent footing 2 as the conquerors for the first 
time intended to establish permanent institutions. 

The early Muslim Kings who with the exception 

1 Compare Cambridge History of India III. pp. 2-10. Also 
Cambridge History of India III. pp. 4, 10, n. 

2 Compare Islam by Sir D. Ross, p. 60. 



26 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

of the Saiyads, 1 were either Turks, Afghans or Pathans, 
took the title of Sultan. Their administration is 
known as the "Sultanate". They came to India from 
Turkistan and the North West where the seeds of 
Islamic Culture had recently been sown. The ad- 
ministrative structure built by them continued, with 
occasional modifications and improvements, to exist 
during the successive Muslim dynasties up to the 
year 1857 A.D., and as I propose to show elsewhere, 
bore strong resemblance to the institutions developed 
by the Abbaside rulers of Baghdad, usually known as 
the "Caliphs". 

As Sir Denison Ross has pointed out 2 Islamic 
traditions of sovereignty had sufficiently crystallised 
by the time the Turks established themselves on Indian 
soil. Students of legal research had for their guidance 
Al Mawardi's "Ahkam us Saltanyah", 3 an epoch 
making work on constitutional Law and practice and 
"Tarikhud Dawal" written by Saif Uddin Ibn Tiqtaqa 
in the nth century A.D. To the rulers of Central 
Asia, the ancestors of the Mughals, the pages of Niza- 
mul Mulk's "Syasat Namah" were familiar. 4 

The history of the judicial administration in 
Medieval India, therefore, necessarily entails a study of 
the origin and the development of Islam, the religion 
founded in the early days of the yth Century A.D., by 

1 Saiyads (1414-1450 A.D.). The word 'saiyad' literally 
means leader. The followers of the Prophet Muhammad 
who claim descent from him through his daughter Fatima, 
generally style themselves 'Saiyads'. 

2 Islam, pp. 46-47. 

3 (Arabic) Printed in Paris 1901-1906. Al Mawardi 
was an Arab. 

4 Nizamul Mulk wrote this book in about 1168 A.D. 



THE SUBJECT MATTER 2J 

Muhammad, the Prophet of Arabia (570-632 A.D.) 
and noticed during the caliphate (632-1258 A.D.). 

The subject-matter of this book, however, is limi- 
ted to a study of the system employed by the Muslims 
to administer justice in India and, incidentally, of the 
principles of the adjective Law in force in medieval 
India. This is not intended by any means to be an 
exhaustive treatise on the Law of Procedure adopted 
by medieval Indian Courts. I have given a brief 
description of it in order to illustrate the working of 
the judicial system, and discussion has been confined 
to those points only on which authorities exist either 
in the form of decided cases, or where reference to 
them has been given in the precedents quoted in such 
authoritative works on the Muslim Law as the 
Hidayah, the Fiqh e Firoz Shahi or the Fatawa e Alam- 
giri which regulated procedure of courts in medieval 
India. This particular aspect of Muslim Law and, 
incidentally, of the medieval history of India, has, it 
seems, remained unexplored, while the substantive 
Law of the Muslims has received adequate attention 
at the hands of eminent authors such as Baillie, Ameer 
All, Wilson, Tyabji and Mulla. It is, therefore, hoped 
that this book may lay the foundation for further re- 
search both in Muslim Law and its practical working, 
and in medieval Indian history. 

In discussing, however, the judicial system in 
vogue in any Muslim country, it is necessary to bear 
in mind that one of the principal articles of faith 
among the Muslims has been a steadfast reliance on 
the Quran, the Book of Revelation, as the Word 
of God which is meant for all times to give Law to 



28 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

the people. The Muslim rulers in India, like their 
co-religionists elsewhere, 1 accepted the Quranic 
Law as divine and hesitated in making any attempt 
to "improve" upon what was ordained. There 
was not much scope for fresh legislation on the sub- 
jects provided for in the Quran, nor for repeal of the 
"Sacred" Laws nor for the development of what is 
nowadays called Judge-made Law. In fact there 
seemed to be no need for it. If precedents were 
sought in Muslim Courts, they were either from the 
Quran or from the practice of the Prophet Ahadith 
(Traditions) collectively termed "Usul ul usul". 
Sometimes resort was had to the consensus of opinion 
among the Ulema Ijma, 2 but in no case was any essen- 
tial provision of the Law altered. In cases where the 
Quran, the Ahadith and the Ijma could not give any 
direction the Judge was to use his discretion, but his 
Judgment was not necessarily binding on others. 3 
This was perhaps a reason why no encouragement 
was given to Case Law in practically all Muslim States 

1 The Muslims, after the death of the Prophet in 623 A.D. 
had divided themselves into Sunn is and Shiahs. The former 
thought that a successor (The Caliph) to the Prophet could be 
elected while the latter insisted that the succession should be 
confined to the family of the Prophet. The Sunnis had an 
overwhelming majority and won the fight. The Shiahs had no 
other difference on the essentials. The Sunnis themselves 
were divided into four principal schools of thought, the Hanafis, 
the Shafa'is, the Malikis and the Hambalis, but again there 
was no divergence of opinion so far as the chief tenets of the 
religion were concerned. 

2 'Ijma' means gathering: refers to consensus of opinion. 
See i. Hujjat ul Balighah by Sh. Waliullah (Chapter on Mujta- 
hid). 2. McDonald, pp. 57-58. 

3 Al Mawardi, compare J. R. A. S., 1910, p. 765 ; Fitzgerald 
p. 7; also letter of Caliph Omar I to Qazi Shorai and Shibli 
Sirat un Nabi II, p. 245. 



THE SUBJECT MATTER 29 

throughout the world. 

It may be for this reason that one finds that the 
sources of information about the history of judicial 
administration in Medieval India, which covers a 
large portion of Indian History from 1200 to 1857 
A.D., are limited. 1 There have been Chronicles of 
various Courts, memoirs of Kings and historical anec- 
dotes given by foreign travellers they are all excellent 
accounts of the period as a whole but in most of them 
there has been no systematic discussion of the judicial 
system and Laws that were in force in medieval India, 
except casual references. The attention of these 
writers seems to have been occupied mostly with 
battles and political changes. The Ain e Akbari 4 and 
the Akbar Namah 2 give an account of the general 
conditions of administration while the Fatawa e Alam- 
giri, 3 the great Corpus Juris of Aurangzeb's reign 
is more or less an exposition 4 of the substantive Law 
then prevailing. Both were compiled under two of 
the greatest sovereigns but neither describes in any 
detail the machinery employed by the medieval rulers 
in carrying out their judicial administration. 

The study of this subject has, therefore, involved 
extensive reading and a good deal of travelling in the 
interior of the country. It appears to me that lack 

1 Compare Amedroz remarks (J. R. A. S., 1910, p. 761) 
"of Muslim legal procedure we know but little, the nearest ap- 
proach to Law reports being the notices of judicial Proceed- 
ings in works dealing with the lives of Judges. Such a work 
is the History of the Kazis of Egypt by Al Kindi", 

2 See Bibliography. 

3 See Section II. 

4 Compare (i)Baillie Digest, p. XII. (z)Hidayah,p. XXXII 
says "bare recital of examples". Maasir e Alamgiri, pp. 5 29-30. 



30 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

of information and the compilation of the Fatawa e 
Alamgiri so late as 1670, are responsible for the fact 
that a systematic description of the Muslim judicial 
system is generally found missing in the many works 
on Indian History sometimes even by writers whose 
books are commonly read in India. For example, 
from a perusal of the Oxford History of India, 1 the 
"Mughal Rule in India", 2 "Akbar to Aurangzeb", 3 
the "Mughal Administration", 4 and of other 5 books, 
an impression is conveyed that in spite of an elaborate 
machinery of government there was practically no 
system for the working of the Law Courts in Muslim 
India. "The main defect" says a modern writer 6 "of the 
department of Law and Justice was that there was no 
system, no organisation of the Law Courts, in a regular 
gradation from the highest to the lowest, nor any 
proper distribution of courts in proportion to the 
area to be served by them". 

On the other hand w^e possess the following com- 
ment from an eminent English scholar in i85o 7 : 

"Much of the procedure in the Company's (East 
India Company) Courts of Justice has been derived 
from it (Muslim Law); and through this means, and 
also through the subordinate officers and pleaders 
of the Courts who, with a very few exceptions, 

x p. 311, 371 (V. A. Smith). 

2 p. 189 (Edwardes and Garrett). 

3 pp. 233-4 (W. H. Moreland). See also his 'India at 
the death of Akbar% pp. 34-35. 

4 p. 19 (1920) (Sir Jadunath Sarkar). See also III Aurang- 
zcb, pp. 82-85. 

6 p. 89, Roe's Embassy by Foster. 

6 p. 1 08, Mughal Administration by Sarkar (1935). 

7 Moohummudan Law of Sale by Baillie, p. XV. 



THE SUBJECT MATTER 31 

are Moohummudans or Hindoos trained to the same 
methods and have derived any knowledge or juris- 
prudence they possess from that source it exercises 
a powerful though unseen influence on the adminis- 
tration of justice even by English Judges". 

According to McDonald 1 the Muslims regarded 
the administration of justice as a duty, and with their 
"armies everywhere went Law and Justice such as it 
was. Jurists accompanied each army and were set- 
tled in the great camp cities which were built to hold 
the conquered land". 

"Many centuries", says Hamilton 2 in 1780 "have 
elapsed since the Mussulman conquerors of India 
established in it, together with their religion and 
general maxims of government, the practice of their 
Courts of Justice. From that period the Mussulman 
code has been the standard of judicial administration 
throughout the countries of India which were subju- 
gated by the Mohammedan princes, and have since 
remained under their dominion. In one particular 
indeed, the conduct of the Conquerors materially 
differed from what has been generally considered in 
Europe (how unjustly will appear from many passages 
in this work) as an invariable principle of all Mussul- 
man governments; namely, a rigid and undeviating 
adherence to their own Law, not only with respect 
to themselves but also with respect to all who were 
subject to their dominion". 

In a remarkable passage in his report 3 on Judicial 

1 Muslim Theology, p. 83. 

2 Hidayah, p. XIV. 

3 Dow III, pp. XXIX-X. 



32 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

reforms submitted in 1772 to Warren Hastings, Lt,- 
Col. Alexander Dow, a distinguished Civil Servant 
of the East India Company, says "The Courts of Jus- 
tice ran through the same gradations which the general 
reason of mankind seems to have established in all 
countries subject to regular governments. The 
Provinces were divided into districts, in each of which 
a Judge appointed by the Emperor decided in Crimi- 
nal as well as Civil affairs In disputes concerning 

property there lay an appeal to the Supreme Court in 

which the Viceroy presided in person There 

arose a chain of appeals from the lowest to the highest". 1 
We have again the testimony of a French traveller of 
note wherein he says 2 "Barbarous as we are apt to con- 
sider the Sovereigns of Asia, they are not always un- 
mindful of the justice that is done to the subject". 

It would thus appear that there was undoubtedly 
a judicial administrative system in those days, though 
opinions regarding its utility at the present stage of 
India's material progress may not be the same. 

Indeed there is, as I intend to show elsewhere, 
considerable evidence to support the fact that there 
existed a workable system in medieval India suitable 
to ideas of those days. That it was picked up 
more or less in its original form 3 and allowed 4 to 

1 Dow III, p. Ivi. 

2 Bernier's Travels, p. 263. Compare Marshall's remarks 
on p, 391 Diary edited by Khan. 

8 Compare Hidayah, pp. XIV-XV. 

4 Compare Wilson's "Anglo Muhammadan Law" by A. 
Yusuf Ali, p. 26. In his reply to John Buller enquiring about 
the execution of certain punishment awarded to dacoits, War- 
ren Hastings said on 12.10. 1781: 

" As the natives are not to be tried according to 



THE SUBJECT MATTER 33 

work 1 in the East India Company's Courts by such an 
experienced administrator as Warren Hastings, is 
an undoubted testimony of its usefulness in those 
times. 

Apart from the prominence given to the Muslim 
system of Law and Justice by Warren Hastings (1774- 
1784), we find that the contemporary Persian authori- 
ties, as well as foreign travellers, have distinctly 
referred 2 to Courts of Justice and the Qazis 3 Judges 

our notions of justice, but by the established Law of 
the Country, excepting in very extraordinary cases 
where it has been usual for Government to interpose, 
I must request that you will permit the officers ap- 
pointed for that purpose to carry the enclosed warrant 
into immediate execution". 

1 Sir William Markby in his "Hindu and Mahommedan 
Law" pp. 7, 8, thinks that no other way was legally possible, 
as the Mughal Emperor who had granted the Diwani to Clive 
by a Farman was in existence at Delhi and would not permit 
any other law to be promulgated. This argument, however, 
supports the theory that it was for this reason that the govern- 
ment of England could only consider itself morally responsible 
for the good administration of the land over which the East 
India Company had secured certain administrative rights. If 
they interfered at all, it was for the sake of efficient govern- 
ment and nothing more than advice in the shape of 'regula- 
tions' could be given. Kaye in his Administration of the 
East India Company (p. 93) points out that the British govern- 
ment in England objected to the use of the word "Laws" by 
Cornwallis as they could only be promulgated by the Mughal 
Emperor to whom the Company was legally responsible. 

2 Persian (i) Travels of Ibn Batuta Lee. (2) Tarikh e 
Firoz Shahi. (3) Ain e Akbari. (4) Maasir e Jahangiri. (5) 
Maasir e Alamgiri. (6) Khafi Khan. (7) Badaoni. (8) Ruqaat 
e Alamgiri. (9) Arzdasht. (10) Mirat e Ahmadi. 

Foreign Travellers (i) Marshall, p. 391. (2) Manucci I, 
pp. 198-204. II, pp. 210, 419. Ill, p. 263. (3) Travernier I, p. 
325, (4) Bernier, pp. 212, 263. (5) Manrique II, pp. 112, 149, 
159. (6) Roe, p. 260. 

3 Captain Hamilton, Vol.1, p. 121 "seek Justice at the 
Cadjee's Court". 



34 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

of those times, and to the system of appeals 1 and 
punishment, and also to the exercise of the Royal prero- 
gative by the medieval Rulers. A number of impor- 
tant law books 2 were written during the Muslim 
period by persons who were Law Officers or Judges 
of repute. There was indeed no reporting of cases 
as we use the phrase in our own times, but Aurangzeb 
is said to have issued 3 orders regarding the preserva- 
tion of Court records (Collections) and the circula- 
tion of important judicial decisions among the Qazis. 3 
There have been instances in which appeals were 
preferred on interlocutory points (vide Storia III, pp. 
263-264) to higher Courts even before Aurangzeb's 
times, and this also suggests in a way that some re- 
cord of cases must have existed. Whether the records 
were kept exactly as they are preserved now in British 
India, is not clear. I came across an order of 
Aurangzeb's Court among the state papers in the 
Diwani Office of the Nizam's government, direc- 
ting a particular file to be kept in the office safely. 
Perhaps for this reason the equivalent of the 
word "Record Room" in British India is usually 

1 Badaoni (Ranking) p. 311; Dow III, pp. XXIX-X; More- 
land, India at the death of Akbar, p. 36; Owen 'Tall of the 
Mogul Empire", p. 4. 

2 The best known are Fiqh e Firoz Shahi, Sharh e Waqa- 
yah Kitabul Ikhtyar and Fatawa e Alamgiri. 

3 Compare Sarkar (1935) "The Mufti is urged to spend 
his days and nights in reading books on jurisprudence and 
the reports of cases from which one can learn precedents. 
When he finds the judgment proposed in a case by the Qazi 
under whom he serves, to be opposed to all precedents, he 
should tell him politely 'Sir, in a similar case reported in such 
and such book the judgment is given thus. It would be better 
if you pronounce your judgment after reading that book"% 
p. 28. Compare Baillie, pp. 763-769. 



THE SUBJECT MATTER 35 

Mohafiz Khanah literally a strong room. But no 
Record Room registers have so far been recovered 
in any place in India. I visited libraries such as the 
Rampur State Library, the Oriental Library, Banki- 
pur, the Imperial Library, Calcutta, the Asafiah Li- 
brary, Hyderabad in addition to the British Museum, 
the India office and the Bodleian libraries, but no such 
papers were available. From a reference given in 
the India office records, Home Miscellaneous 529 
(pp. 3 1 1-3 1 5) it appears that the Qazis who decided 
cases used to send their records to the Chief Court 
(Suder Kutchehri) of the Province along with a 
monthly return, but no such returns have yet been 
discovered. 

Either there were no record registers, or they 
disappeared during the gradual process of decay of 
the Mughal Empire from 1750 to 1857. The docu- 
ments which have so far assisted me were probably 
obtained by or made over to litigants and they were 
collected by me during an extensive tour in the coun- 
try. These have been preserved carefully enough 
by their owners, while the official records, perhaps, 
have been first neglected and then destroyed in a period 
of constant turmoil and upheaval. 



SECTION H 
THE SOURCES OF INFORMATION 

The books and documents that were found useful 
in the preparation of this work may be classified into 
two categories (i) Original authorities and (2) Later 
compilations. They do not contain any systematic 
accounts of the medieval judicial system but a substan- 
tial amount of information can be gathered by piecing 
together references. 

The original authorities consist of books or papers 
written mostly in Persian by contemporary writers and 
official records. They can be divided into four 
groups: 

I. Original Judgments and diaries of News- 
writers. 

II. Commentaries on the art of government by 
Muslim jurists. 

III. Regulations issued by the King. 

IV. Works of Contemporary writers. 

(1) Records kept under official 

patronage. 

(2) Persian authorities. 

(3) Foreign travellers. 

The later compilations consist of modern pub- 
lished books. I have given a select Bibliography in 
the Appendix. The more important of these author- 
ities are noticed here. 



THE SOURCES OF INFORMATION 37 

i. ORIGINAL AUTHORITIES 
I. ORIGINAL JUDGMENTS AND DIARIES 
i. Baqiatus Salehat. 

This is a collection of fifty judgments and orders 
in original delivered by Courts during the period 1550 
1850 A.D. They were obtained by me from various 
persons and I intend to publish them separately. The 
judgments are written in Persian and bear the seal 
of the Court and give first hand information. 

2. Collections. 

Some diaries kept by Waqae Nigars or News- 
writers attached to various Courts and Judgments 
have recently been discovered in Hyderabad Daccan 
and preserved in separate Files in the Diwani office 
of H.E.H. the Nizam's Dominions. I have given the 
name 'Collections' as the easiest method of reference. 

The above MSS. hitherto not utilised by any other 
writer, have simplified my task, as it is through the 
judgments and orders contained therein that the allega- 
tions made by various historians referred to above 
can be tested. 

Another useful publication is Farameenus Sala- 
teen, a collection of Farmans issued by the Mughal 
Emperors, by M. Bashir Uddin, a retired Collector of 
a district in India and printed in Delhi, It contains 
copies of the original Farmans which give the duties 
attached to each office. A few Farmans copied from 
this book are given in the appendix. 



38 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

II. COMMENTARIES BY MUSLIM JURISTS 

1. Ahkamus Sultanyah by Al Mawardi. Paris 
1901-1905. 

A well known treatise on Muslim political law 
written in Arabic by Al Mawardi. Other writers on 
this subject draw their references mainly from this 
book. 

The Qazi's appointment and office are dealt with 
exclusively in a separate chapter. 

2. Sulukul Saltanath by Ghazali. Br. Mus. 
MS. Or. 254. 

The author of this book is a well known philo- 
sopher of Islam, and his comments on the art of 
government contained in the above MS. merit atten- 
tion. 

3. 'Sayasat Namah' by Nizamul Mulk Tusi. 
Br. Mus. MS. Add. 23, 516. 

Nizamul Mulk was a famous Persian Minister 
For over a quarter of a century. He wrote this book 
:ontaining fifty chapters in order to oifer practical 
guidance to people engaged in the task of adminis- 
tration. The date is somewhere between 480 and 498 
A.H. i.e., 1082 A.D. and 1098 A.D. 

4. Sulukul Muluk by Fazal bin Rozbahan 
[sfahani. Br. Mus. MS. Or. 253. 

The book refers mainly to the Turkish rulers of 
Central Asia from whom a number of pre-Mughal 
dynasties sprang. It consists of 15 Chapters. Chap- 
ter I deals with the maintenance of Law, II with the 
ippointment of Qazis (Fol. 31) and Mohtasibs (Fol. 
54a), X Repression of Mutinies, XIII Laws of Treason 



THE SOURCES OF INFORMATION 39 

and XIV with Zimmis. 

5. Muqaddamah Tarikh e Ibn Khaldun. 

Ibn Khaldun is the greatest historian produced 
by the Arabs. His discussion of the principles of 
administration in various Muslim countries bears 
testimony to his scholarship and erudition. It has 
been translated into French and Urdu. The latter 
translation was done by Abdur Rahman and printed 
in 1904 at Lahore, 

6. Zakhiratul Muluk by Ali Shahab Hamdani 
(i) Br. Mus. MS. Add. 7, 618. (2) MS. King's 
College, Cambridge. 

This book was written in about 782 A.H. i.e., 
i4th century A.D., and deals with the rights of the 
people and the obligations of the rulers. It is a trea- 
tise on political ethics and good government and was 
a favourite book with scholars during the early Tur- 
kish regime. The author was a celebrated "Sufi" 
reputed for his piety and character. 

7. Adabul Harb, by Fakhr Uddin Mudabbir 
Br. Mus. MS. Add. 16853. 

The MS. appears to be the same as Adabul Muluk 
No. 2767 of the India Office Library. It is a disser- 
tation on government and war and gives contem- 
porary thoughts on statecraft. The author is Sharif 
Muhammad and he has dedicated this book to Iltut- 
mish. 

8. Fatawa e Jahandari by Zia Uddin Barni, 
MS. 1149, or 2563 (I.O.L.). 

Another book on government, written in Persian 
during the Sultanate. 

9. Kitabul Kharaj by Imam Abu Yusuf. 



40 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Abu Yusuf was the first Qazi to be appointed 
Qazi ul Quzat or the Qazi of the Qa2is under the 
Abbaside Caliphate. He was noted for his learning, 
piety and scholarship. The book is authoritative so 
far as the interpretation of Law in relation to the 
State administration is concerned. His other treatise 
Kitab Adabul Qazi deals exclusively with the judicial 
system and the duties of Qazis. 
/ 10. Hidayah by,Burham Uddin Ali bin Ali B. 
Marghinani^A.H. w%%rf$us. MS. Add. 5543. 

This is a well known commentary on Muslim 
Law and was adopted in the Courts in Medieval 
India for guidance till it was replaced by Fatawa-e- 
Alamgiri in about 1670 A.D. Copious references to 
cases decided by medieval Courts are given, but 
details of the Courts and the exact places of trial are 
omitted. In 1772 A.D. Warren Hastings got this 
book translated from Arabic into Persian through a 
commission consisting of Ghulam Yahya, Taj Uddin, 
Mir Muhammad Husain and Mulla Shariatullah. 
The English translation was done by Hamilton and 
the only edition available is that published by Grady 
in 1870. Book XX deals exclusively with the duties 
of Qazis. The book has been printed at Lucknow 
and Calcutta. 

III. REGULATIONS ISSUED BY THE KING 

< FiqheFiroz Shahi. MS. I.O.L. 2,987 by 
Yaqub Muzaffer Kirani. 

A Civil Procedure Code compiled in the time of 
Firoz Shah Tughlaq, The book gives details of the 
procedure and law on civil matters. It is in Arabic 



THE SOURCES OF INFORMATION 41 

but was translated into Persian by the order of Firoz 
Shah and seems to have escaped the attention of prac- 
tically every historian of the period. It is an impor- 
tant book as it remained the basis of the judicial 
system under the Delhi rulers until replaced by the 
Fatawa e Alamgiri. 
V^j^_-~Akre Akbari Bib. Indica. 

This book has been utilised by many students of 
Mughal history. It gives the duties of Qazis and Mir 
Adls and instructions about the recording of evidence. 
The English translation by Blochman and Jarrett 
is fairly accurate. 

3. Tuzuk e Jahangiri Edited by Saiyad Ah- 
mad Khan, Aligarh. 

It gives the institutes of Jahangir and a few 
instances of his will to do justice among his subjects. 
The edition published by Saiyad Ahmad appears to 
be the only realiable copy of the original. The Bodle- 
ian Library, Oxford has a Farman of Jahangir in ori- 
ginal which defines the status of Aliens and seems to 
have been left out in this publication. 

4. Dasturul Amal Alamgiri. Br. Mus. MS. 
Add. 6,598. 

These sets of regulations give the structure of 
the Mughal provincial administration. . \ w 

^^J^rr^^ by Shaikh Nizam l> and 
"outers. 1670 A.D. 

According to the author of Alamgir Namah,< 
who is supported by Khafi Khan, Aurangzeb did not 
favour 1 poets and Court Chroniclers in his court, 

1 Compare Aurang2eb i (Sarkar) p. 6; Dow HI, 396. 



42 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

as he thought that they "told lies" in their flattery 
and served no useful purpose. 1 He had also occasion 
to criticise 2 a few judgments of inferior Courts. He 
felt that not only the people but the Law Courts as 
well did not possess sufficient knowledge of the law. 8 
In about 1663 A.D. he, accordingly, appointed a com- 
mission under the chairmanship of Shaikh Nizamlna 
celebrated lawyer of Lahore. The latter was assisted 
by six more lawyers. The names of four only, viz., 
Muhammad Jamil, Zia Uddin, Jalal Uddin Husain 
and Muhammad Husain only are traceable. 4 

The commission examined a number of men 
learned in Law and completed their report after seven 
years. 6 The expenses of the commission amounted 
to two lakhs of rupees. 6 The report written in Arabic 
contained an exhaustive code of laws to replace the 
Fiqh e Firoz Shahi v anoomer regulations, and Fatwa 
e Alamgiri was the name given to it by the commission 
themselves after its "illustrious projector". The 
Fatawa is based on the Quran, and the most favoured 
traditions (Ahadith) and references are given to de- 

1 Compare Baillie, Law of Sale, p. VI; Br. Mus. MS. Add, 
26, 239 f. 66; Alamgir Namah, p. 1072. 

2 See (i) order MS. Raqaem e Keram K. C. C. 15. 
(2) order pp. 72, 80 Waqae Alamgir. (3) Br. Mus. MS. Add, 
26, 239, f. 16. 

3 Maasir e Alamgiri, p. 529 also Storia II, p. 31. Au- 
rangzeb's conversation with his tutor Mulla Saleh: Alamgii 
Namah, p. 1086. 

4 Vide Tajalli e Nur (Hyderabad) pp. 77-89, 98-99, 119-120, 

122. 

5 Khafi Khan, p. 25 1, Vol. II. 

6 Maasir e Alamgiri (Hyderabad No. 218) p. 529. Two 
lakhs of those days amount to about f million rupees of the 
present day. 



THE SOURCES OF INFORMATION 43 

cided cases though exact details, viz., the names of 
parties, court and date are lacking. Another commis- 
sion was appointed a few years later under Chulpi 
Abdullah to translate the work into Persian. (Elliot 
VII, p. 160). 

So far as the interpretation of Muslim Law in 
India is concerned the book can be thoroughly relied 
upon. Baillie, who translated portions from it in his 
Digest, observes 1 in 1850 A.D. 

"In Fatawa cases are so well arranged and so 
judicially interspersed with the more abstract 
parts of the work as in general to carry their own 
reasons to the mind " 

"It is sufficient to notice in this place that the 
Fatawa e Alamgiri is a collection of the most 
authoritative Fata\va or expositions of Law, on 
all points that had been decided up to the time of 
its preparation". 

Several editions of this work have been, printed. 
The one published at Cairo is named Fatawa e Hindyah 
and gives some introductory remarks 2 in the preface 
borrowed mainly from Maasir e Alamgiri (pp. 529- 
530). The translation in Urdu was done by Sh. 
Amir Ali and printed at Lucknow. Sh. Amir Ali 
has given a lengthy introduction but has entirely 
ignored the historical part of it.) 

6. Br. Mus. MS. Add. 6,580. 

This is a MS. of Mirat e Ahmadi, containing 
Aurangzeb's Farman on penal regulations; Chapter VI 

1 pp. VII and VIII, Moohummudan Law of Sale. 

2 p. 2, Egyptian edition. 



44 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

of Sir Jadunath Sarkar's "Mughal Administration" 
(1935) is mostly a reproduction of this Farman, which 
is printed on pp. 278-283 (Part I. Mirat e Ahmadi. 
Baroda). 

7. Dasturul Amal Alamgir. Br. Mus. MS. Add. 
6,599. 

This is a Manual containing directions regarding 
weights, measurements and cognate matters. Fol. 
i86-b-2oi-b give forms of appointment of Shiqahdars 
and other officials. 

8. Dastur. Br. Mus. MS. Or. 1779. 

Gives the Revenue tables of Provinces and dis- 
tricts of the reigns of Shahjahan and Aurangzeb 
with forms of appointment to various offices and also 
their duties. 

9. Dasturul Amal Shahenshahi. Br. Mus. MS. 
Add. 22,831. (Muhammad Shah's reign). 

Prepared in 1230 A.H. (1818) gives account of re- 
gulations in the time of Muhammad Shah (1719-1748). 

10. Dasturul Amal Adalatha e Talluqah. MS. 
2907. I.O.L. 

A civil and criminal procedure code in Persian 
prepared in 1793 for the East India Company's districts 
in South India. 

IV. WORKS OF CONTEMPORARY AUTHORS 

I. A. Records kept under official patronage 

i. Tajul Maasir by Hasan Nizami. MS. 200 
King's College* Cambridge. 

This MS. gives the history of the early Sultanate 
period. 



THE SOURCES OF INFORMATION 45 

2. Tabaqat e Nasiri Br. Mus. Or. 1886 by Min- 
hajuddin Siraj (Qazi) Or. 1887 is the life of the author 
compiled for Sir Henry Elliot by Zia Uddin Ahmad 
Nayyar, a descendant of Qazi Minhaj Siraj 1849 A.D. 

3. Badshah Namah Abdul Hamid Lahori. 
Bib. Ind. 

Like Akbar Namah this was an official record of 
the reign of Shahjahan for 20 years. Shahjahan took 
an interest in deciding cases to which occasional 
references are given in this book. 

4. Amal e Saleh by Saleh Kamboh. Or. 2157. 
Br. Mus. MS. Add. 26,221. 

Written on the lines mentioned above; this book 
has in part been published by the Royal Asiatic So- 
ciety of Bengal. Another edition has been printed 
in Hyderabad. 

5. Alamgir Namah (by M. Kazim. Bib. Ind.) 
Written on the lines of Lahori's Badshah Namah 

gives the history of Aurangzeb's first ten years of reign 
and occasional reference to his legal reforms. 

B. Letters of Officials 

i. Ruqaat e Alamgir. Oxford, I.O.L.; Azam- 
garh, Lahore, Lucknow. 

Aurangzeb's orders and letters written officially 
have been collected at various places. They contain 
valuable information regarding his administration. 
One set of 'letters' is contained in Waqa e Alamgir, 
published with notes by Chaudhri Nabi Ahmad, a 
Police Officer of U.P., India. 

The Shibli Academy, Azamgarh has also printed 



46 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

some private letters of Aurangzeb under the same 
title. 

The British Museum Collection is Add. 18,881, 
Add. 26,239, and the India Office MS. 1,344 and 
3301. See also Raqaem-e-Keram Ousley MS. 168 
Oxford and MS. K.C.C. 

2. Kalimat-ut-Tayyebat. Br. Mus. MS. Add. 
26,238. 

This is a collection of official orders of Aurang- 
zeb regarding various subjects including Court work 
by his favourite secretary Enayetullah Khan. They 
are referred to in part in Ruqaat-e-Akmgir, Lucknow 
1260 A.H. and Ruqaat-e-Alamgiri Lahore 1281 A.H. 
and also in Elliot VII, p. 203. The reference given 
by me in the book is mostly to Waqae Alamgir whose 
contents tally with those of the MSS. in the British 
Museum, Bodleian and the India Office Libraries. 

3. Fuyuz ul Qawanjn Lucknow. 

This is a collection of Aurangzeb's orders and 
regulations giving duties of various officers in the 
form of letters. The MS. is in the possession of a 
relation of H.H. the Ruler of Bhopal State and has 
been referred to by Sir Jadunath Sarkar in his preface 
to History of Aurangzeb. 

4. Insha. Br. Mus. MS. Add. 7,689. 

5. Do. Br. Mus. MS. Add. 9,697. 

These two collections contain forms of civil 
contract, duties of various officers, and different kinds 
of drafts used in offices. 

6. Arzdasht. Collection of letters of MuzafFar 
Khan by his News-writer. Br. Mus. MS. Add. 16,8 59. 

The author was attached to an old nobleman of 



THE SOURCES OF INFORMATION 47 

Shahjahan's reign. In the middle of the book refer- 
ence is given to letters of a Mir Adi which give in- 
formation regarding judicial matters. 

II. Persian Authorities 

1. Travels of Ibn Batuta. (Arabic) 

(1) , Translated by Lee. 

(2) Edited by Gibb London. 

Ibn Batuta was a well known Arab traveller who 
visited India in the time of Muhammad Tughlaq. 
He was appointed Qazi of Delhi. He gives occasional 
references to the work of his court and his relations 
with the King. 

2. Tarikh-e-Firoz Shahi by Zia Uddin Barni. 
Bib. Indica (Elliot III, pp. 97-268). 

This is a history of the Delhi rulers from 662 
A.H. to 758 A.H. "designed as a continuation of 
Tabaqat e Nasiri". It is an indispensable book for 
the study of the Sultanate administration. The author 
held for some time the position of a judge and possesses 
fair and independent judgment. His comments on 
the duties and qualifications of the Kings and of the 
Qazis are of great importance. 

3 . Tarikh-e-Sher Shahi by Abbas Khan. Tuhfa- 
e-Akbar Shahi. (i) MS. King's College, Cambridge. 
(2) Br. Mus. MS. Or. 164, 1,782. (3) MS. 222 
Oxford. 

This gives a general survey of the administration 
in the time of Sher Shah Translated in Elliot IV, pp. 
300-433. 

4. Tabaqat e Akbari by Nizam Uddin. 



48 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Deals with the history of Muslim Kings of Delhi 
and chiefly with the general aspect of Akbar's reign. 

5. Muntakhab ut Tawarikh by Abdul Qadir 
Badaoni. (i) Bib. Indica Series. (2) Translation by 
Ranking. 

The author was an orthodox Muslim and dis- 
liked Akbar's religious policy. He has several criti- 
cisms to make in respect of Akbar's disregard of the 
letter of the Law. The first volume which deals with 
the rulers who existed before Akbar is only a summary 
of events. 

6. Chahar Chaman. Br. Mus. MS. Or. 1892. 
MS. Add. 16863; by Chanderbhan Brahman. MS. 
Add. 26141. 

The author was a distinguished Persian scholar 
of the time of Shahjahan. He deals mostly with the 
duties of a Chief Minister and gives a general account 
of the administration under the Mughals. He writes 
with enthusiasm about the splendour of the Court 
of Shahjahan. The work has been fully utilised by 
Dr. Ibn Hasan in his "Central Structure of the Mu- 
ghal Empire". 

7. Muntakhab-ul-Lubab by Khafi Khan. Bib. 
Indica, 2 Vols. 

This book has been utilised by several historians. 
The first volume deals with Taimur and his descen- 
dants up to Shahjahan. The second contains an ac- 
count of the reign of Aurangzeb and at some places, 
criticism of his policy, especially in regard to his hesi- 
tating to inflict the adequate penalty after conviction 
in each case. Kennedy (Vol. II, pp. 84-86) thinks that 
Khafi Khan's work is a most reliable authority on 



THE SOURCES OF INFORMATION 49 

contemporary Mughal period. 

8. Mirat-e-Ahmadi. Br. Mus. MS. Add. 6,580 
(460 Folios). 

A history of the Province of Gujrat by Ali 
Muhammad Khan. The book has recently been pub- 
lished in Baroda in 3 volumes by Professor Nawab 
Ali of Neotani and Mr. Seddon, I.C.S. (retired). The 
first two volumes give the original and the third is a 
translation supplement. The author was once Diwan 
of Gujrat and has given comprehensive notes on the 
administration of the Province and his is a most use- 
ful book for the study of the judicial administration 
under the Mughals. 

9. Maasir e Alamgiri by Saqi Mustaid Khan. 
(2) Bib. Ind. printed Calcutta 1870-1871 referred to 
in Elliot, Vol. VII, pp. 181-197. 

The author was a Waqae Nawis and was requested 
by Enayetullah, the famous Secretary of Aurangzeb 
to write the history of Alamgir after the loth year of 
his accession. The book gives a short account of the 
Fatawa-e-Alamgiri and deals generally with the poli- 
tical conditions of Aurangzeb's reign. James Bird 
has also translated portions of this book in his Poli- 
tical and Statistical History of Gujrat. 

10. Tarikh-e-Ferishtah Translation of 2 Vols. 
by Dow by Briggs 4 Vols. 

No systematic account of the judicial system is 
given but occasional instances of methods employed 
in meting out justice are mentioned. 

n. Seirul Mutakhirin by Ghulam Husain from 
1707 onwards. 

Dedicated to Warren Hastings, gives an account 



50 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

of the later Mughals. 

12. Mirat-e-Sikandari History of the Kings 
of Gujrat. Br. Mus. MS. Add. 26,277. 

From 620 A.D. to 1600 A.D. gives a general 
account of Gujrat States. 

13. Maasir-ul-Umra Br. Mus. MS. Add. 6565- 
6566 or Bib. Indica series by Samsam ud Daulah. 
1782 A.D. 

Gives lives of the Mughal Amirs (Barons). It 
is incidentally an extremely interesting account of the 
government of those days. 

III. Foreign Travellers 

Students of this particular aspect of Muslim 
administration in India must feel grateful to the 
foreign scholars like Al Beruni, Hamilton, Bernier, 
Manucci, Monserrate and Manrique for having given 
us a number of cases decided by the Judges during 
the period they were in India. 

1, Al Beruni. 

Abu Raihan Muhammad, son of Ahmad Al Beruni 
973-1048 A.D. visited India in the early nth century 
A.D. and wrote an account of its people. He has an 
international reputation as a mathematician and an 
astrologer and his observations on the learning and 
culture of the people in the nth century A.D. India 
are valuable. The book Tarikh ul Hind has been 
translated into English by Dr. Sachau. 

2. Monserrate 1 5 80-1 5 82. 

Father Monserrate was a Christian Missionary 
at the Court of Akbar. His Commentary translated 
by J. S. Hoyland (Oxford) mentions a few cases 



THE SOURCES OF INFORMATION 5! 

decided by Courts in Akbar's reign. 

3. Sir Thomas Roe. Embassy of Sir Thomas 
Roe edited by Sir William Foster Oxford. 

Sir Thomas Roe was the Ambassador (1615-1617) 
of King James of England to the Court of Jahangir. 
He was a cultured man and the account given by him 
in his "Journall" is both reliable and illuminating. 
He has made occasional reference to cases decided 
by Qazi's Courts. 

4. Terry Edward. "Voyage to East India". 
London 1655. This book is a supplement to Roe's 
"Journall'. 

Terry is a critical observer of the customs and the 
institutions that existed in Muslim India. 

5. Manrique, S. Travels, 2 Vols. (1629-1643) 
published in Latin in 1649. Translation by Hakluyt 
Society. 

He seems to be biassed against Muslims whom he 
calls "Barbarians", II, p. 144 and their Quran 
"obscene" but was "astonished and surprised to see so 
much polite usage and good order in practice amongst 
such barbarians", p. 218, Vol. II. The account given 
by him, however, is both interesting and useful. 

6. Bernier. "Travels in the Mughal Empire". 
1656-68. Edited by Foster. 

7. Manucci Storia du Mogor, 4 Vols. Edited 
by W. Irvine. R.A.S. London. 

These two works give a general impression of 
the country and the people, and have particularly 
referred to some trials of cases. Bernier seems to 
compare every custom of France with that of India 
and labours to prove the superiority of the former. 



52 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

While Manucci was on the staff of Prince Data Shukoh 
and has a strong dislike of his opponents, his des- 
cription of Court proceedings does not show any 
special bias even though he was himself the accused 
in one case. The author wrote that he was making 
an effort to give a "correct description" of cases, 
(Vol. Ill, p. 265), but appears to possess a tendency 
to rely upon hearsay evidence. All his references 
should therefore be accepted with caution. 

8. John Marshall Diary Edited by Professor 
Sir Shafaat Ahmad Khan Oxford. 

Marshall was an English traveller in the iyth 
century A.D. He has given a general impression of 
Mughal India and has referred to Courts as well. 

9 . Captain Hamilton A Voyage to East Indies, 
2 Vols. I.O.L. 

Hamilton, an Englishman, visited India in the 
reign of Aurangzeb and has at several places commen- 
ted upon the laws and the customs of the people. 
The work has not been utilised by historians so far. 
Sir William Foster has recently edited the book with 

notes. / 

/ ty LATER COMPILATIONS 

The most useful work in this connection is 
Kitabul Ikhtyar written in Persian in 1212-1217 A.H. 
i.e., 1798-1803 A.D. by Hazaqat Khan who was 
connected with the criminal courts in Muhammada- 
bad, Hyderabad State. His aim was to compile a 
w r ork which might facilitate decision of criminal cases. 
The book has been published with comprehensive 
notes in Urdu by Ahmad Sharif at Azamgarh. Re- 
ference has been given by the author to cases decided 



THE SOURCES OF INFORMATION 53 

by various Muslim Courts, but without details of places 
or the parties. No conclusions regarding the judicial 
system of the period can be drawn from a perusal of 
this book although the tendency of Courts in decid- 
ing criminal cases can be ascertained. This book 
has not been utilised by any author so far. The MS. 
in the British Museum is Add. 22,714. The book 
has been printed in Calcutta. 

Alexander Dow, History of Hindustan, 3 Vols. 
Calcutta 1772 A.D. 

Lt. -Colonel Alexander Dow was an Orientalist 
and a civil servant under the East India Company. 
He translated the history written by Ferishtah in the 
first 2 Volumes and prepared a third along with his 
report on the judicial reforms and submitted them in 
1772 A.D. to Warren Hastings. The first two chap- 
ters in Volume III show how anxious Colonel Dow 
was to improve the judicial machinery as it existed 
then in Bengal. His comments on historical anec- 
dotes have been discredited by Sir Jadunath Sarkar 
and Professor Beni Prasad; but the inquiry of a train- 
ed civil servant into the usefulness of the judicial 
machinery, as it was, cannot be brushed aside as un- 
reliable. 

Ibn Hasan Central Structure of the Mughal 
Empire Oxford. 

This is a valuable book for the study of the Mu- 
ghal administrative system at the centre. In the end 
the author has given a brief outline of the central 
judiciary. He has utilised nearly all the original 
authorities of the period which deal with the general 
aspect of the Mughal administration. 



PART II 
THE TEXT 



CHAPTER I 
CONDITIONS IN MEDIEVAL INDIA 

India in 1 206 

When Qutub Uddin Aibek, the founder of the 
Turkish Slave dynasty, established his government at 
Delhi in 1206 the whole of the Indian peninsula was 
not under him. The Turks had so far annexed Mul- 
tan (1175-1176), the Punjab (1187), Ajmer, Delhi, 
Qannauj (1191-1193), Benares, Bihar, Bengal 
and Bundelkhand (1197-1203). The Chalukyas of 
Cutch, and Kalingas of Orissa, the Kakatyas, the 
Yadavas and the Cholas of South India were still 
unsubdued. 

With the exception of the western Punjab and 
western Rajputana the people living in the country 
were mainly Hindus. Hindu society as described 
by the writers of the period consisted of four castes 
and a number of non-caste groups, the Brahmans or 
the priests, the Kshattryas or the warriors, the Vaishas 
or the businessmen and the Sudras or the slaves. 1 
Birth alone settled the classification in each case. The 
rules of distinction were so strictly observed that 
if a Brahman ate "in the house of a Sudra for sundry 

1 The Vedas are four, Rig Veda, Atharwa Veda, Yajur 
Veda, Sam Veda and are the chief sacred books of the Hin- 
dus. Manu in his commentary has described in detail this 
division of society. 



58 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

days he was expelled from his caste and could never 
regain it". 1 

The first three castes were admitted into one 
pale, but the members of the last one, namely the 
Sudra, were no better than slaves (Manu, Ch. VI. 
Jones Tr.). They could not marry a woman of a 
better caste. The classes did not eat their meals to- 
gether and a Brahman was prohibited from eating food 
cooked by a member of any other caste. 

The Hindu Administration 

The administrative structure of Hindu society 
was founded on the principles enunciated by their 
Law-giver, Manu, about the time of the death of 
Jesus Christ, 2 and described by commentators like 
Yajnavalkya, Kautilya and others. The govern- 
ment was vested in an absolute ruler whose title was 
considered divine. 3 He was expected to conduct 
his administration through civil officers. The king- 
dom was divided into provinces, divisions, districts 
and groups of villages. The last named formed the 
first unit of administration possessing a certain amount 
of local self-government working under the super- 
vision of Royal officers. 

The King was also the chief justiciary of the 
State. He was, like the other judges, entitled to five 

1 Al Beruni II, p. 163. 

2 Jayaswal says ist century B.C. (pp. 20-21). Max Muller 
thinks 4th century A.D. Elphinstone's estimate of 9th cen- 
tury B.C. seems to me too wide. Buhler is of opinion that 
the date is 2nd century A.D. 

3 Manu, Ch. VII, pp. 1-13. Reference is to English 
Translation by Sir William Jones. 



CONDITIONS IN MEDIEVAL INDIA 59 

per cent on all debts admitted by the defendant on 
trial and to ten per cent on all denied and proved. 
(Manu, Ch. VIII, p. 139). He was expected to warn 
the parties beforehand of the seriousness of the offence 
of perjury and of the punishment which the perjurer 
would undergo in a future state. 

Trials of Cases 

There were eight constitutional parts of a judicial 
proceeding, namely King, Judge, Assessors, Law 
Books, Accountant, Scribe, Gold and Fire ordeal and 
Water. According to Al Beruni 1 the witnesses in each 
case were not to be less than four unless the fact was 
one clearly established and oaths varied according to 
the nature of the object claimed. In a criminal case 
if the article stolen was not important, the accused 
was allowed to swear before five learned Brahmans. 
Persons having a pecuniary interest in the cause, 
infamous villains, servants and friends attached to the 
party were not allowed to give evidence. 

Trials by ordeal were frequently resorted to. 2 
In some cases the accused was made to take a caustic 
drink (Bish). It was believed that if he spoke the truth 
the drink would do no harm to him. Similarly 
an accused person was often thrown into water. If 
he was innocent, he would not drown. 

There was a still more drastic form of ordeal. 
An accused was required to hold in his hand a red hot 
iron wrapped in a leaf in order to establish his defence, 

1 Al Beruni's India II, pp. 160-163. 

2 Compare Jayaswal, pp. 134-139. Al Beruni II, pp/i 5 9- 
160. Elliot I, p. 329. Marshall, p. 374. 



60 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

The trial of cases was entrusted to local assem- 
blies in the first instance. The punishments awarded 
by courts were severe. Sometimes the criminals 
were outcasted or imprisoned for life. In cases of 
theft, punishment depended upon the value of the 
stolen object. Even Brahmans were not exempt 
from heavy penalties. Expiation was recognised as 
a form of punishment. 

There were appeals too on payment of fee. 

The King, as the final Court of Appeal, was 
enjoined to check falsehood and strive after truth and 
justice, since it was from these that happiness sprang. 

The Brahmans 

The Brahmans as a class monopolised legal learn- 
ing and the judicial posts, and ruled as an oligarchy. 
They arrogated to themselves special privileges. 1 
"If the murderer was a Brahman", says Al Beruni, 
"and the murdered person a member of another caste, 
he was only bound to do expiation consisting of fast- 
ing, prayers and almsgiving". This Brahman concep- 
tion of a functionary society and birth predilection 
gave rise to acute caste ramifications and class hatred. 2 
It prevented, more than anything else, the unification 
of all the followers of the Vedic religion into one 
nation. The administration of the Sultans and of the 
Mughals that followed that of the Brahmans was a 
little different in character. It did not favour class 
distinctions and was in a sense more patriarchal 

1 Compare Grady, Institutes of Hindu Law, p. 193. 

2 Compare Dutt, India Past and Present, London 1890, pp. 
73, 124-125. 



CONDITIONS IN MEDIEVAL INDIA 6l 

and, of necessity, arbitrary. 1 It had replaced govern- 
ments which were carried on by the followers of an 
entirely different religion who formed the bulk of the 
population. The new administration had thus to 
keep the idea of its own self-preservation above 
everything else. 

Despotic character of Medieval State 

The medieval Indian state remained autocratic 
in character throughout, and represented in India the 
western ideal of Tetat c'est moi of the French 
monarchs. The domain of legislation, as was the 
case in medieval Europe, did not belong to the people, 
and in India there were many different sets of people. 
They all looked upon the king as the fountain of 
justice and were content to be thankful if he was 
strong enough to maintain an efficient administra- 
tion. 2 

Sultanate an alien institution 

The Turkish administration in India was an alien 
rule to begin with. The ideas and intellectual back- 
ground of the rulers were not indigenous and the 
foreign element was re-inforced constantly by new 
invaders and their followers. Yet since these latter 
tended to settle down on the soil and to make India 
their home, they became in turn imbued by the per- 

1 Compare: i. Ala Uddin's address, Barni, pp. 290-1. 
2. Beveridge I, p. 82. 3. Md. Tughlaq's conversation, 
Barni, pp. 510-22. 4. Mirat I, p. 341. 

2 Compare Briggs II, p. 326; Elphinstono "The will 
of a wise Prince was better than the opinions of variable 
bodies of men," 



62 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

vading spirit; so that judicial as well as revenue and 
military administration bore the particular local stamp. 
Thus, notwithstanding a strong family likeness to 
those of western Asiatic countries, the distinctive 
Indian character of public institutions was discernible 
throughout. 

Influence of Village Assemblies 

The village assemblies or Panchayets as they are 
still called, which had been managing local affairs, 
executive and judicial for several centuries 1 and had 
grown into powerful bodies, obtained due recogni- 
tion in all medieval states. Their functioning was 
not interfered with, although the decrees given by 
them were sometimes not quite in conformity with 
the law of the kingdom, and were based on local cus- 
toms. 2 No attempt seems to have been made by the 
administrators to modify by legislation local tradi- 
tions so as to bring them into strict accordance with 
the rules of the State Law. They merely let them 
exist as they were. As pointed out by Sir H. S. 
Maine the law of the Panchayets was their own. The 
people had fewer disputes, and in many cases settled 
them locally without calling in the aid of the law courts. 
The decision of a Panchayet was binding on the parties 
and was as a rule non-appealable. The decrees were 
obeyed on pain of excommunication. 

The Panchayet system of settling disputes in the 

1 Compare Report of the Select Committee of the House 
of Commons, 1832, Vol. Ill and the note of Sir Charles Met- 
calfe. 

2 Compare (i) the customs of the Nairs in Malabar. (2) 
Customary Law of the Punjab by Wilson, p. 59. 



CONDITIONS IN MEDIEVAL INDIA 63 

villages continued long after the medieval empires 
had broken up and even today we find a partial recogni- 
tion of it by the legislatures of the different provinces 
in India. In the United Provinces, the Panchayets 
are regulated in matters of civil disputes by the U.P. 
Village Panchayet Act VI of 1920 and attempts are 
now being made to restore to them some of their 
former powers. 

Hindu and Muslim Systems 

The Hindu legal system so far resembled that of 
the Muslims, which succeeded it in the larger part of 
India and which will be discussed hereafter, that both 
were founded on books believed by their respective 
followers to be divinely inspired, namely the Vedas 
and the Quran. The Law derived from the former 
was expounded by Manu in his Manu Samhita, 1 and the 
rules of conduct prescribed in the latter found ampli- 
fication in well-known commentaries like Sahih 
Muslim, Kitabus Sunnan by Abu Daood Sijistani, 
Muwatta, Minhajut-Talebin, Jame-us-Saghir etc. Both 
systems laid emphasis on the trial of cases by the Ruler 
himself 2 and on his duty to select good men to act as 
Judges. 

In neither was any importance attached to Judge- 
made law. There was no regular method of recording 
and transmitting points of law established during the 
day to day administration of justice, but local tradi- 

1 Other commentaries of importance are of Yajnavalkya, 
Narada and Birahaspati. 

2 Compare (i) Manu, Ch. VIII, p. 152. (2) Quran. Inni 
Jaalna Khalifah. Yahkama Bainan Nas Bil Haq. 

5 



64 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

tions where they could secure a niche in some chance 
commentary tended to perpetuate them in a Judge's 
memory. 

It may be for this reason that the gradual re- 
placement of the Hindu judicial system by Muslim 
institutions in practically the whole of India as the 
Sultanate and the Mughal Empires were extended, 
passed without much notice by the masses. 



CHAPTER II 

CONCEPTION OF JUSTICE IN MUSLIM 
STATES 

i W 



Meaning of Sovereignty 

Muhammad's message as the Prophet of Islam 
was an emphatic appeal to the people to obey God 
the Omnipotent Being Who alone possessed the attri- 
butes of Sovereignty. The Prophet claimed for him- 
self no better status than that of an ordinary human 
being. 1 The ruler of the Islamic state was only 
God's servant (Abd) on earth who was responsible for 
seeing that His Laws were duly obeyed. 2 (Az saltanat 
wa badshahi wa khilafat o geti panahi pevastae ijrae 
ahkame ilahi maqsud wa manzur ast). Zia Uddin 
Barni, the author of Tarikh-e-Firoz Shahi felt proud 
in India of Sultan Firoz Tughlaq (i 3 5 i-i 3 8 5) as during 
his reign the commandments of the Quran were 
faithfully carried out. 3 About two centuries later 
Sher Shah (1540-1545) while pronouncing an order 4 
is said to have declared that "crime and violence 
prevent the development of prosperity ...... It behoves 

Kings to be grateful for the favour that the Lord has 

1 See Quran: qul ana basharun mislokum. 

2 Alamgir Namah, p. 391. (i) Compare Waqae Alamgir 
pp. 125-126. (2) Zakhiratul Muluk. I.O.L., p. 89. (3) Mirat 
Vol. I, p. 251. 

8 Barni, p. 578. 

4 Compare Elliot IV, p. 410. Compare Aurangzeb's 
remarks, Storia III, p. 261. 



66 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

made His people subject to them and, therefore, not 
to disobey the Commandment of God." 

The ruler in Islam was not the people's master, 
but only held an office in trust 1 for the Supreme Being. 
In 1661 while refusing to allow possession of crown 
jewels to Shahjahan, Aurangseb wrote that he was 
holding them as God's chosen custodian and that he 
was a trustee of God's money for the benefit of His 
people. 

The sovereignty it} a Muslim state essentially 
belonged to God. 2 The Muslim Kings in India in 
general regarded themselves as God's humble ser- 
.vants (Nyazmand-e-dargah-e-Ilahi). 3 The ruler was 
His delegate duly elected by His people to perform 
certain functions and he could be deposed 4 by them 
if he acted against the Divine Law promulgated in 
the Quran (KJhalase badshahan az mabashirat maam- 
lat e mazkur ke dar an razae khuda nest..4iest). 
Ala Uddin Khilji (1295-1315), Muhammad Tughlaq 
(1325-1351) and Akbar (1556-1605) who were by no 
means monarchs of orthodox tastes were careful to 
exhibit in public their reverence for religion. The 



1 Compare Anecdotes (Sarkar) p. no; Aurangzeb's letter 
to Aqil Khan. Mirat I, p. 258: bedae wadae Afridgar. 

2 (i) Kitabul Kharaj, pp. 3-5. (2) Arnold, Legacy of Islam, 
p. 286. (3) Fitzgerald, p. 26. (4) Kennedy II, p. 7. Akbar's 
reply to his advisers: "The decree is God's decree and of 
Him alone is Sovereignty". 

8 Compare Tuzuk, p. 24. 

4 Compare (i) the frequent dynastic changes in Muslim 
India. Appendix A. (2) Sarkar (1935) pp. 16-17. (3) Briggs 
I, pp. 225-227.' (4) Sujan Rae, p. 135. The Qazi of Jaunpur in 
1569 declared certain regulations of Akbar as illegal and an 
attempt was made to depose him. Darbar e Akbari, p. 64. 
Cal. 1914, 



CONCEPTION OF JUSTICE IN MUSLIM STATES 6j 

author of Ain c Akbari says 1 that Akbar "passed every 
moment of his life in self-examination or in adoration 
of God". Father Monserrate writes 2 that Akbar 
was most stern in dealing with offences against faith. 

Responsibility to God X 

It would thus appear that in Islam the whole 
community had by implication a responsibility 3 to see 
that God's commands were obeyed though it was, 
for practical purposes, always delegated to the ruler. 
The administration of justice was an essential 4 act for 
the fulfilment of that responsibility. Sher Shah con- 
sidered justice as the most excellent of religious rites. 5 

"Jahangir regarded the daily administration of 
justice in public as one of his most sacred duties". 6 

Shahjahan once remarked in court that "justice 
was the mainstay of his government" (Ritq o fitq 
e mulk o mal munhasir bar fahcm o insafast) 7 
and according to Aurangzeb the "garden of ad- 
ministration was watered by the rain of Justice" 
(gulistan e saltanat ba sahab e adl). The command 
in the Quran was to do justice 8 bet\veen man and man 
and had to be obeyed. 

The King as the chosen representative of the 
people was expected to exercise this authority either 

1 Ain I, Bloch, p. 154. 

2 pp. 209-210. 

3 Compare Minhaj,p. 500. 

4 Quran. Bil adl qamatis samawat o wal arz. Compare 
Mirat I, p. 268. Barni, pp. 39-43. 

Elliot IV, p. 411. 

6 C.H. of India, IV, p. 182. 

7 MS. 370. 1.O.L. 

8 Quran "Innallah ya murukum bil adl wal ehsan." 



68 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

personally as Imam e Adil (just leader) or through 
officers appointed for the purpose. 1 The ruler and 
his selected officers were to do what was "just and 
right" in the sight of God to Whom alone they were 
answerable. 2 A Muslim Qazi giving an order or hold- 
ing views in contravention of the Divine Law was a 
'Kafir' apostate 3 and liable to a sentence of death 4 
and to eternal degradation. Aurangzeb, in review- 
ing an order of Khan e Jahan reprimanded him for 
forgetting his responsibility to God. 5 This emphasis 
on the individual responsibility of the officers has been 
the keynote of judicial interpretation of law in Muslim 
Indian States as well as in other Islamic countries. 

Rttlers and Law Courts 

The Muslim sovereigns in India even at the zenith 
of their power and influence seldom, if at all, attempted 
to tamper with the day to day administration of justice. 
Historical research has not so far established any such 
instance. On the contrary, there have been cases 
in which they have bowed to the authority of the 
Law Courts sometimes against their will. 6 In State 



1 Ain II, Jarrett, p. 41, Vol. I, Text, p. 283. 

2 Compare (i) Zakhiratul Muluk p. 89. (2) Baillie- Law 
of Sale, p. LX. (3) Widow vs. King Ghyas, pp. 90-91, Stewart. 
(4) In writing judgments the Qazis generally chose the title 
"Khadim ush Shara" servant of the Shara' for themselves 
(Baqiat). 

8 Quran. Wa man lam yahkam be ma anzalallaho fa olae- 
kahumul kafiroon. Al qaza fil Islam, p. 5 . 

4 State vs. Qazi Mir, Storia IV, 118-119. 

5 Waqae, p. 72. Compare (i) Ruqaat. Br. Mus. MS. Add. 
26, 239, f34. (2) Anecdotes, p. 91. 

6 Vide State vs. Sidi Maula. Badaoni I, pp. 170-171. State 
vs. Nurjahan. Tuzuk. Shibli, p. 30. Widow vs. King Ghyas. 



CONCEPTION OF JUSTICE IN MUSLIM STATES 69 

versus Qazi Mir (StoriaIV,p. 119), a Canon Law case 
the court refused to award the sentence of death for 
which Aurangzeb had directed the Public Prosecutor 
to press. Similarly in contempt of court cases the 
maximum penalty was allowed to be given against 
government officials. 1 It was perhaps to the Kings' 
own benefit as it kept up the prestige of their own 
Law Courts which under the Shara' it was their duty 
to protect. 

It was true that there were rulers like Muhammad 
Tughlaq who filed a libel suit in the Qazi's Court 
and on losing it put the defendant under arrest on some 
other excuse, 2 but this attitude was resented by the 
community 3 and was not common. There were 
Qazis like Mir Saiyad Muhammad, Miaji or Shaikhul 
Islam Abdullah who held themselves subordinate 
to none but God in giving judgments, 4 and yet they 
commanded respect from sovereigns who were some 
times not noted for their strict adherence to Shara*. 
It is said of Qazi Sadr Uddin Sharif, Chief Justice of 
Bahmani Kingdom, that he refused to join his post 
after having gone on leave, until the King (Muhammad 
Shah) undertook to permit Judges to execute the law 

Stewart, pp. 90-91. Compare report of the learned men of 
Lahore to Aurangzeb saying "never had it been heard of in 
Hindustan that anyone had ventured to put forth a hand upon 
the sacred person of a Qazi" Storia II, p. 254. 

1 Hamid Uddin vs. Kam Bux, Khafi Khan, pp. 436-437. 
II. Qazi Yusuf vs. Governor in Sadiq vs. Shakur. Sarkar, 
Aurangzeb V, pp. 421-422. State vs. Yaqub and Nairn. Briggs 
IV, p. 519. 

2 Badaoni I, p. 239. 

3 Ibid. Also compare Briggs I, p. 225. 

4 Darbar e Akbari, Cal. Ed. 1914, p. 67. Mirat Supp., pp. 
45-46. Compare Barni, p. 290, 



JO ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

against the guilty. 1 

Ameer All has pointed out 2 that the early Caliphs 
of Islam could not alter or act contrary to the judg- 
ments of the constituted courts. 

It may be assumed, therefore, that the law courts 
had freedom to record judgments in their own way. 
The only limitation lay in the law itself w^hich they 
were appointed to administer. If it was according 
to Shara', the order of a Qazi had the same force as 
the Shara' itself and obedience to it was a duty. 

The Hanafi Law 

The majority of the Indian Muslims had accepted 
the Hanafi 3 Law, which was developed by Abu 
Hanifah, the great jurist of Arabia and amplified by his 
disciples, Abu Yusuf, 4 Chief Justice of Baghdad, and 
Imam Muhammad. 5 There were non-Hanafi States 
in the South 6 and one later in Oudh, but there was 
no difference 7 in their respective systems of adminis- 
tration of justice, since questions of personal law 
affected in no way the constitution or the working 
of the law courts. 

As noticed in the 'Hidayah' and the Fatawa e 
Alamgiri the courts in Muslim India were to be guid- 
ed by the following authorities 8 in deciding cases: - 



1 Briggs IV, pp. 323-3 2 5 

2 Spirit of Islam, p. 280. 



8 Compare Fatawa (Baillie) p. XXVIII. Mirat I, p. 268. 
Maasir e Alamgiri, p. 529. 

4 Author of Kitabul Kharaj. 

5 Author of Jame us Saghir. 

6 Bijapur and Golconda. 

7 See the trial of cases. Safir e Oudh, p. 6. Compare 
Wilson, p. 23. 

8 Hidayah, pp. XXV-XXVI. 



CONCEPTION OF JUSTICE IN MUSLIM STATES JI 

1. The Quran. 

2. The Sunan, practice of the Prophet or the 
traditions as they were called. The Quran and the 
Sunan are the Usul-ul-Usul or as Dr. Vesey-Fitz 
gerald (p. 5) has said "the bases of the bases". 

3 . Concurrent opinion of the Prophet's compa- 
nions (Sahabah). 

4. Concensus of opinion (Ijmaa'ul ummat) 1 
among the most learned of the Prophet's followers. 
The most popular work containing such opinions was 
Al Hidayah. It was generally accepted as the leading 
authority in the Turkish courts and in practically the 
whole of Muslim India, until replaced by the Fatawa- 
e Alamgiri. 

5. Their own individual judgment. Accord- 
ing to Abu Hanifah the Qazis could act on the princi- 
ples of Istihsan (public good) Istislah (public policy) 

or Istishab (concordance). 
f 

Classification of L J a^vs 

3The laws that were prescribed or promulgated 
were not codified in the modern sense but could be 
classified under several heads, and notably three, the 
Canon Law, the Common Law and the Regulations 
known as Tashriyah (religious) and Ghair Tashriyah 
(Secular). 

The Canon Law 

The Canon Law (Ahkam e Shariyah) was the 
personal law of the Muslims and was applied exclusive- 
ly in religious matters such as apostasy, and other 

1 Ameer All, M. Law, II, p. 7. 



JZ ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

offences against God. It also formed the basis of 
the Muslim Adjective Law. A coutt of Canon Law 
had no executive authority and had nothing to do with 
the advancement of the Muslim religion. It was 
merely a Court which tried offenders. Non-Muslims 
were excluded 1 from the penal provisions of the Canon 
Law. 

The Common LMW 

The Common Law consisted of the Islamic Law 
of Crimes, Tort, Nuisance, etc., and applied to all 
the subjects of the state irrespective of religion though 
in the matter of sentence the Muslims were, in offences 
like adultery 2 and drunkenness, 3 subjected to more 
severe penalties. The distinction between the Mus- 
lims and the non-Muslims was, however, not allowed 
to work to the disadvantage of the non-Muslims. 4 
Sometimes perhaps on grounds of public policy they 
were granted a reprieve in full. 5 

Qanun e Shahi 

The third set of laws were the regulations issued 
from time to time by the monarchs in the form of 
proclamations, known as Farmans and Dasturul 

1 Compare: (i) Baillie, p. 174. (2) Rahim, p. 59. (3) 
Jahangir's Farman. Fraser MS. 228 Oxford. (4) Offences such 
as selling of pig's meat, could not be committed by a Hindu. 
Compare Fatawa, p. 174 (Baillie). 

2 Compare Kitabul Ikhtyar, pp. 28, 122. 

8 Kitabul Ikhtyar, p. 138; Sharhe Waqayah. 

4 See (i) Aurangzeb's order on the complaint of Amin, 
son of Bahar Uddin. Waqae, p. 59. (2) Mirat I, pp. 277-283. 

6 Vide State versus Rae Rae Singh mentioned in Tuzuk 
S.A., p. 62. 



CONCEPTION OF JUSTICE IN MUSLIM STATES 73 

Amals. 1 They were called Qanun e Shahi. 2 They 
may be compared with the edicts of th Roman 
Emperors or the Orders in Council issued by the 
British King or the Qanun of the Turkish Sultans. 
Such regulations are contained in collections like Ain 
e Akbari, Zawabit e Alamgiri. 

The sphere of Qanun e Shahi was naturally large. 
The ruler could make and unmake regulations, for 
on many matters of detail the Quran could not pro- 
vide a solution, revealed as it had been in a very 
different state of society. 

Qanun e Urf 

A fourth set of Laws which had their origin nei- 
ther in the Quran nor in the Farmans, consisted of 
local customs Qanun e Urf. 

In the absence of codes, customary Law naturally 
played an important part. 3 The customs and prac- 
tices of the inhabitants of India were too deep rooted 
for interference so that a large number of Muslim con- 
verts carried with them into the Muslim fold tradi- 
tions that ran counter to the tenets of Islam. For 
instance in the greater part of the Punjab females were 
and are excluded from inheritance in the villages in 
spite of the specific provisions of the Shara' to the 

1 Dastur literally means Convention. The term was first 
applied to the Rules and Regulations issued by the Caliphs of 
Islam. 

2 Also called (i) Laws of the Empire. See Shah Alam's 
farman granting Diwani to Clive in 1765. (2) Qawanin o 
Zawabit. Mirat I. p. 258. 

3 Compare Maine "In India the Legislator derives his 
sanction from the custom of the people". 



74 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

contrary. 1 In Mian Khan versus Bibijan (5 B. L. R. 
p. 500) the High Court of Calcutta found proof that 
for a considerable time before the establishment of 
British administration loans on interest by Muslims 
had been recognised in spite of their prohibition by 
the sacred law. 

Such conventions or un-\vritten laws of local 
custom and practice have, in Muslim legal phraseology 
become known as Urf, i.e., what is accepted by the 
community. History tells us that there have not 
been lacking attempts to regard "Urf" as one of the 
roots of the Fiqh or Muslim Jurisprudence and thus 
to reconcile the rigidity of law with local require- 
ments. 2 Whether this giving to local customs, which 
were sometimes contrary to Islamic tenets, a recog- 
nised position in the legal system was voluntary or 
whether it was forced by circumstances, it proved to 
be an expedient useful to the Muslim Kings and helped 
to augment their powder. It resulted to a certain ex- 
tent in the intermingling of the two peoples; the 
Hindus taking to Muslim methods and the Mussul- 
mans adopting customs or the converts retaining 
habits which were fundamentally opposed to the 
strict principles of the Islamic faith. 3 



1 Compare Punjab Customary Law by Wilson, p. 59. 
Compare Moplah practices of Hindu rituals Malabar Gazet- 
teer, p. 196. 

2 Compare Ameer Ali, Islamic Culture 1927. p. 94. 

8 See Tupper II. p. 131. In the Sialkot district in certain 
villages only the Hindus adopted the Muslim Law of giving 
inheritance to females; similarly the transfer of property by 
gift to women was accepted by the Hindus. Vol. II, pp. 70-75. 
See also II, pp. 88-89, I 57~ 2 59* 



CONCEPTION OF JUSTICE IN MUSLIM STATES 75 

Precedents 

Fifthly the Law Courts were permitted to look to 
precedents established by other courts. There were 
"Muftis' or Jurists attached to the Law Courts who 
used "to spend night and day in search of precedents", 1 
for the guidance of the courts, but, as Mawardi has 
pointed 2 out, the Qazi had to use his own legal facul- 
ties and was not bound to follow decisions given by 
other courts even though they might be those of his 
own superior court a striking contrast with the 
practice prevailing in the British Indian Courts today. 
If the question involved was open to an expert's 
opinion, that opinion was considered relevant, and 
could be accepted 3 if it was not rebutted in any other 
case. The general practice, however, seems to have 
been to invest courts with discretion in all such 
circumstances. 4 

Equity and good Conscience 

Lastly, the courts were enjoined to act, when 
there w^as no clear law, on the principles of equity 
and good conscience. 5 Lord Parker of Waddington in 
Hamira Bibi versus Zubaida Bibi observes 6 that the 
chapters on the duties of Qazis in the principal 
works on Muhammadan Law clearly show that the 

1 Sarkar (1920), p. 37. 

2 Compare J. R. A. S. 1910, p. 765. Rahim, pp. 179-181. 

3 Compare Al Faruq by Shibli, p. 60 See Aga Mohd. vs. 
Kulsum Bibi, 25 Cal. p. 9. (P.C.). 

4 Kitabul Ikhtyar, p. 23. 

5 See Fatawalll. pp. 383-386. (Kitab Abdul Qazi). Com- 
pare Siratun Nabi II. p. 245. 

6 L. R. 43 (1916) I. A. pp. 301-302. 



j6 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

tules of Equity and equitable considerations commonly, 
recognised in the courts of Chancery in England 
were in fact often referred to and invoked in the ad- 
judication of cases. The collection of select Jurists* 
^opinion in the Fatawa e Alamgiri was primarily 
meant to guide judicial discretion on the lines of 
Equity. 

Laws noti\ 



In the absence of codes (the nearest approach to 
which was Aurangzeb's Fatawa e Alamgiri) the writ- 
ten law was contained in official manuals 1 and in the 
edicts issued by the monarchs, copies 2 of which were 
circulated among the people. 3 Sir Thomas Roe's 
remark 4 in 1615-16 that "laws they have none written," 
but understood by all supports this conclusion. Ru- 
lers like Aurangzeb took particular care to get the law 
carefully drafted 5 and properly notified 6 (dar har 
shaher wa dar har parganah wa qasbah dae wa shae 
sasand). 

For the observance of Shara' rules among the 
'Muslims and of the general rules of morality in accor- 
dance with the Law of Islam among all, special officers 
(Mohtasibs) were appointed and they had a separate 

1 For instance Dasturul Amal MS. 162 K. C C. 

2 All Muhammad Khan refers to "Naql" in Mirat I. 
p. 268. Mirat I. p. 283. 

3 See Mirat I, p. 259. 

pp. 251, 283. 

p. 171. Tuzuk S. A. p. 4. Compare Dow 
III. p. XXXIII. 

4 Compare Roe, p. 89, p. 104. 

5 Compare Ibn Hasan Chapter on Farmans, pp. 92-106. 

6 Mirat I, pp. 25 i, 258, 268; Dow III, p. XXXIII. "edicts 
arere transmitted to every district; they were publicly read". 



CONCEPTION OF JUSTICE IN MUSLIM STATES JJ 

department 1 of their own during the Sultanate and 
Mughal periods. 

The application to non-Muslims of these sets of 
laws, as would appear from the Fatawa e Alamgiri, 2 
was regulated by the proclamations 3 and the edicts 
that were issued from time to time. Where nothing 
was mentioned about non-Muslims only such por- 
tions of the laws were made applicable to them as 
were not specifically identified with the tenets of the 
Islamic faith. 4 For example they could not be 
prosecuted for eating pig or for denying the Prophet 
Muhammad's position as the messenger of God, for 
which the Muslims alone could be punished. The 
Law of Shara' as derived from the Usul ul Usul was 
in fact intended for the 'believers' in the Faith. The 
'non-believers' were to be "let alone". 5 

The King's officers in medieval India like the 
Roman Praetors had thus to supplement that law for 
the Hindus and others for whom it did not provide. 6 

This principle of differentiating Muslims from 
non-Muslims in the matter of crimes and punishments 
or in the cognisance of cases in general by the Canon 
Law Courts did not lead to any difficulty in the trial 

1 Prof. Sarkar suggests in 'Mughal Administration' (1920), 
pp. 29-32 that Aurangzeb introduced 'Mohtasibs' but it seems 
that they existed already and were employed by the Sultans as 
well. See Barni, p. 441. 

2 Vol. II, pp. 347-357. Calc. Ed. 

8 Mirat I, p. 250, and Farameen "Jamhur mutawattine 
Atraf bedanand". 

4 Fatawa II, p. 357. Sharh e Waqayah III. Chapter on 
Qaza. 

5 Quran 'Lakum denukum waliya Din*. Compare Fatawa 
(Baillie), p. 174. 

6 Compare Field, p. 134. 



78 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

of cases. Like the Judges 1 of the Anglo-Saxon 
period the Qazis possessed jurisdiction both in 
Common Law and Canon Law cases. The latter dealt 
mainly with offences against religion, but charges 
that could not be brought against non-Muslims were 
dropped and sentences that did not apply to them 
were not awarded in their cases. 2 

If questions of Constitutional Law were ever 
raised as occurred once in the Court of Mulla Muham- 
mad Yazdi Qazi of Jaunpur, where an application to 
get certain orders passed by Akbar, declared illegal 3 
vras successfully made, no special Bench was created. 
The Qazi of the place was regarded as having inherent 
jurisdiction to try sucjh-' cases. 

Kings position y 

The task of providing for by legislation subjects 
left out in the Quran and the Traditions was that of 
the monarch. <,JBy virtue of his office he was the le- 
gislator, the defender of the Laws 4 as well as the dis- 
penser of Justice. The Prophet himself had decided 
cases 5 and the Caliphs too heard original suits. 6 

1 Compare History of English Law by Pollock and Mait- 
land. The Bishop sat in the County Courts, the Church claimed 
for him a large share in the direction of even secular justice 
and the claim was fully allowed by Princes who could not 
be charged with weakness", p. 40. 

2 For instance a less severe sentence was given to them 
for drinking intoxicating liquor. 

3 Vide Darbar e Akbari. Cal. 1914. p. 64. Eng. Tr. 

4 Compare Islamic faith by Sir T. Arnold. 

5 Compare (i) Sahih Muslim Hadis reported by Ibn 
Abbas and Ibn Daood (2) Encyclopaedia of Islam, p. 606. II. 
(3) Al Qaza Fil Islam, p. 77. 

6 Risael-e-Shibli, p. 62 Al Qaza Fil Islam, p. 87. 



CONCEPTION OF JUSTICE IN MUSLIM STATES 79 

The ruler of a Muslim State was de facto its Chief 
Judge 1 Mauqaf e Dado Adi. 2 As the chief execu- 
tive officer of the realm it was necessary and, indeed, 
advantageous for him to respect 3 the Law and the 
decrees of the courts that functioned under his own 
aegis. He could not destroy or weaken an institution 
of which he was himself the Chief. 

As an individual he had no privileged position 
though the combination of judicial and executive 
functions in one person "as God's Shadow on earth" 
inclined some of the Sultans to consider themselves 
above the Law. 4 There is, however, no evidence 
that it was the general practice. The Shara' did not 
recognise the theory that the ruler could do no wrong. 
A monarch could be sued 5 in Court and could also 
sue. 6 Dr. Vesey-Fitzgerald refers 7 to cases in Arabia 
where the Caliphs Omar and Rashid submitted to 
decrees passed against them. 

Prerogative 

The Muslim ruler possessed the power of com- 

1 See Quran. "We appointed a Caliph on earth and he 
should do justice". 

2 Alamgir Namah, p. 1097. 

3 Compare Dow III, p. LII. "The Muhammadans carried 
into their conquests a Code of Laws which circumscribed the 
will of the Prince. The principles and precepts of the Coran 
with the commentaries upon that book form an example of 
body of Laws which the house of Timur always observed." 

4 Compare (i) Ala Uddin's conversation withQaziMughis 
Barni, pp. 289-294; (2) Muhammad Tughlaq's address to his 
Judge Badaoni I, p. 239; Barni, pp. 510-515; and (3) The 
constant use of the pedantic in the Farmans issued by them. 

6 See Stewart, pp. 90-91. Widow vs. King Ghyas. 

6 Vide Md. Tughlaq vs. Shikhzada Jami. Badaoni I, p. 239. 

7 Muhammadan Law, pp. n, 32 compare Rahim, p. 21. 



86 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

muting sentences or what is nowadays called the 
prerogative of mercy. It was not used by the first 
four Caliphs of Islam, but according to Ameer Ali 1 
was introduced in the 8th Century A.D. by the Caliph 
Al Moa'vyah. It was exercised in India during the 
Sultanate and the Mughal rule in practically every 
kind of case ranging from theft to murder and dacoity 
with murder. It enhanced the personal prestige of 
the sovereign, and this fact may have influenced the 
Mughal Emperors in their policy of insisting upon 
death sentences being submitted to them for confirma- 
tion in order that they might have opportunities of 
commuting them in suitable cases. 2 

Jahangir pardoned Rae Rae Singh after he had 
been found guilty of treason. 3 Shahjahan in the 
course of an order justified 4 his exercise of the prero- 
gative on the basis of the sanction given by the Law 
of Qisas (compensation) in the Shara'. Aurangzeb 
granted a pardon 5 to Jaswant Singh twice and cons- 
tantly used 6 his powers in favour of the accused 
person. 

The ruler also exercised original jurisdiction. 
In medieval India it was essential for the kings to try 
cases personally, for there were powerful nobles who 
sometimes would submit only to the decrees of the 
King's Court. If the ruler was conscientious and sat 

1 Spirit of Islam, p. 280. 

2 Compare (i) Monserrate, p. 210; (2) Storia II, p. 419; 
(3) A Voyage to Surat. Oxford 1929, p. 138. 

8 Reference in Tuzuk S. A. p. 62. 
4 MS. 37oI.O.L. 
* Khafi Khan II, p. 64. 

6 Compare Khafi Khan II, p. 550. Captain Hamilton I, 
p. 121. 



CONCEPTION OF JUSTICE IN MUSLIM STATES 8 1 

punctually his court was often sought 1 by the people 
as his decisions were "quick" and "genuinely im- 
partial", his situation having placed him beyond the 
limits of fear or of favour. 

/As the Chief Judge it was the duty of the Sultan 
to supervise the administration of justice and to ap- 
point judicial officers Qazis to assist him in the 
disposal of cases. Like The King of England 2 , he 
alone 3 had the right to set up courts of judicature. 
According to Muslim jurists the responsibility of 
selecting suitable men as Qazis was very grave 4 
(Nijat e Padshah na bashad). 

Barni relates 5 the story of the appointment by the 
Sultan Qutb Uddin of an incompetent man Qazi 
Zia Uddin, to the office of Chief Justice which incited 
the people to revolt and murder not only the Qazi 
but the King himself. Akbar (1556-1605) approved 
of the selection of well-informed men (Agahdilan) of 
the realm to the judicial offices. 6 Aurangzeb used to 
spend more time in the selection of Qazis than in mak- 
ing appointments to any other post in the Empire, 7 
although according to Ali Muhammad Khan 8 the 
authority of appointing inferior Qazis (mansoob 

1 Storia I, pp. 201-203. 

2 Compare (i) Blackstone's Commentaries I, p. 266. 

3 Compare Hidayah XX, p. 335. 

4 Compare (i) Mawardi J. R. A. S. 1910, p. 767. Barni, 
p. 352. (2) Barni, p. 351. Ala Uddin could select only four 
persons during his reign who could act as Qazis. Other 
candidates fell short of his standard. (3) Mihnaj ut Talebin, 
p. 501. (4) Tabaqate Nasiri, p. 207. 

6 pp. 4061-408, Bib. Indica. 

6 Ain I, p. 283 (Text) Bib. Indica. 

7 Compare (i) Dow III, p. 396. (2) Waqae Alamgir, p. 40. 

8 Mirat. Supplement, p. 149. 



82 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

namoodan e Arbab e Adalat) was sometimes dele- 
gated 1 by the Mughal Emperors to the Sadtus Sudur 
who issued their sanads or to the Chief Justice (Qazi 
ul Quzat) (Fatawa III, p. 388 CaL Ed.) (Khafi Khan 
II, p. 606). The King was also expected himself to 
have a practical knowledge of Law as in theory he 
alone could "remove the Qazis from their posts" (Al 
Mawardi) and they held office during the King's 
pleasure. 2 It is interesting to recall that at the time 
these notions of constitutional practice were in vogue 
in India, the British Parliament by the Declaration of 
Rights Bill in 1689 insisted that the Judges should 
hold office not during the King's pleasure but during 
good behaviour, 

Qualifications of Qa^is 

The Qazis who were thus selected were in most 
cases men of learning and scholarship. 3 In order 
that their appointment might conform to the require- 
ments of Law the following points were considered: 4 

A Qazi had to be: 

(i) Adult male: According to Abu Hanifah a 
woman could be a Qazi and Muslim Queens like 
Raziah have tried cases Elphinstone, p. 368. 
(1905). 

1 Compare Minhaj, p. 502. Sarkar, p. 35. (1920). 

2 Fatawa e Alamgiri III, p. 393 Syasat Namah, p. 38. 

3 Compare Appointment of Qazi Nizam Ucldin. Mirat 
Supp.,p. 53- 

4 Compare (i) Mawarcli. Ahkam us Saltanyah, pp. 123-128. 
(2) J.R.A.S. 1910, pp. 762-763. (3) Fiqh e Firoz Shahi. (4) 
Fatawa e Alamgiri Adabul Qazi. (5) Kitabul Kharaj Adabul 
Qazi. (6) Caliph Omar's letter to Governor Musa Al Ashari 
referred to in J.R.A.S. 1910. (7) Hidayah BK.XX. pp. 334-352. 



CONCEPTION OF JUSTICE IN MUSLIM STATES 83 

(2) Intelligent and possessing sound discrimi- 
nating judgment and independence. 1 

(3) A free man: Slaves in Islam were not ex- 
pected to act independently. The Kings of the 
Slave dynasty were no longer slaves when they 
ascended the throne. Sultan Iltutmish (1210- 
36) had to satisfy the Qazis with regard to his 
manumission before he could be accepted. 2 

(4) A Muslim: Non-Muslims were not as a 
rule appointed Qazis. According to Hidayah 
strict adherence to the Sacred Law even in private 
life was insisted upon. 3 The acceptance of office 
entailed upon the incumbents a detailed study of 
religious laws and sometimes of the duty of 
leading the Friday prayers. Non-Muslims were 
ineligible because they did not usually study 4 
Muslim Law, but in other departments they were 
freely employed. 5 Al Zaylai has recommended 
the appointment of non-Muslims as Magistrates 
and Judges to decide their own disputes. 6 

1 Compare Waqae Alamgir, p. 40. Ruqaat. 

2 Ibn Batuta. Elliot III. p. 591. 

3 According to Darbar e Akbari, Cal. 1914, p. 67, Qazi 
Mir Saiyad who was selected as a Qazi was a well-informed 
lawyer who practised what he preached. 

4 Compare Briggs II, p. 292. "Before whose (Ala Uddin 
Husain 1350 A.D.) time the Brahmans (Hindus) never engaged 
in public affairs but passed their lives in the duties of religion and 
in the study of the Veclas indifferent to fortune, conceiving the 
service to Prince to be destructive of virtue". The Brahmans 
alone among the Hindus used to study Law in pre-Muslim days. 

6 Compare (i) Maasirul Umara I, p. 101 (Order re. ap- 
pointment of Rajah Toclar Mai). (2) Briggs II, pp. 284-92. (3) 
Beveridge I, p. 141. (4) Waqae Alamgir Part Two, pp. 48-98, 
I.O.L. (5) Captain Plamilton II, p. 24. 

6 Durrul Mukhtar Calc. Ed. p. 521. 



84 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

(5) An Adal i.e., capable of being a trustworthy 
witness. Special heed was paid to a Qazi's 
character and a high standard of conduct was 
expected 1 of him. According to Zia Uddin 
Barni purity of character was essential to a judicial 
office. (Lazim e sharte Qa2a taqwast, p. 352). 
In the time of Ala Uddin Khilji (1296-1316) a 
Qazi who had started drinking liquor was prose- 
cuted and sentenced to death, 2 

(6) Of sound sight and hearing: As pointed 
out in Hidayah 3 no judgment of a Qazi was re- 
garded as valid if it was given at a time when his 
understanding was not clear. As a rule no age 
of retirement was fixed. 

(7) Perfect in the knowledge of the Law: 
According to Barni the post of a Qazi is one of 
responsibility and only those persons who are 
well versed in Law and are of good birth should 
be appointed, (p. 352). 

During the Sultanate and the Mughal period 
selection for the post of Qazi was often made from 
among the Professors of Law. 4 The Qazis 
were further expected not to entertain parties or to 
accept any gifts from strangers. 5 There were other 
similar restrictions and there was also the risk of in- 

1 Compare (i) Encyclopaedia of Islam, Vol. II, 606. "He 
must according to Law be a Muslim scholar of blameless 
life". (2) Barni, p. 298. 

2 Badaoni I, p. 187. 

8 Hidayah XX. p. 338. 

4 Compare Elphinstone (1857), pp. 420-421. Tazkira e 
Ulema e Hind, p. 54: Hadiequl Hanifiah, p. 434. 

6 Compare (i) J.R.A.S. 1910, p. 772. (2) Hidayah BK. 

XX. p. 337- 



CONCEPTION OF JUSTICE IN MUSLIM STATES 8j 

cutting the Ruler's displeasure. It was no wonder 
that the office of Qazi was accepted with feat and 
reluctance, 1 in the eatly days of Islam when strict 
obedience to both the lettet and the spirit of law was 
genetally enforced. Even in the time of Autangzeb 
(1659-1707) public opinion was that the post should be 
offered by the King and not applied fot. 2 Sazawat 
nest kasai ki talabe Qa2a kunad. 

Appointment to be announced * ""***" 

The appointment and the jurisdiction of the Qazis 
were to be made known 3 by the King so that people 
should submit to their otders. 4 Temporary appoint- 
ments and special tribunals also could be created 3 
and were similarly "gazetted". 

General functions oj Qa^is ^^^ 

The powers and functions of the Qazis were 
wide and their responsibilities grave. 5 The order 
of a Qasi's Court had to be obeyed. 6 In civil cases 
each Qazi had the powers of the Judges of the English 
King's Bench Division and in criminal cases they 
tried all cases that ordinarily come before the Dis- 

1 Compare Al Qaza fil Islam, p. 5 . 

2 Hidayah XX. p. 335. 

8 See Farman Baqiatj p. 6. 

4 Compare (i) Mawardi J.R.A.S. 1910, p. 768. (2) Khafi 
Khan II, p. 255. 

6 (i) Amre khatir tar az qaza nest Aurangzeb in 343 
Br. Mus. Add. 26, 239. (2) M. Said, a Magistrate was exe- 
cuted by Shahjahan for giving a dishonest judgment. Storia 
I. p. 197. 

6 The phrase Qazae mabram "inevitable death" originated 
from the fact that an order of a Qazi's Court could not be avoid- 
ed as was the case with death. See Kalimatut Tayyebat Ox- 
ford (MS.) Compare (i) Raqaem e Keram MS. F. 15. (Arju 
ba hukmil Qazi). (2) Saracens by Ameer All, p. 62. 



86 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

trict Magistrates and the Sessions Judges in British 
India and could also pass a sentence of death. 1 Like 
the Judges of the Supreme Court of the United States 
of America, they could declare 2 a Sovereign's order 
illegal. They could call upon governors to resign 
office if they exceeded their powers. 3 The people 
and the King alike turned to the Chief Justice in times 
of trouble. 4 They possessed powers "under the 
Habeas Corpus Act" 6 like the judges under the old 
system of Gaol Delivery in England. In criminal 
matters they exercised the full jurisdiction conferred 
on the District Magistrate under the Indian Criminal 
Procedure Code, and also all powers corresponding 
with those conferred on the modern District Judge 
by the Guardian and Wards, Lunacy, Trust and Insol- 
vency Acts of today. They possessed in fact all the 
Common Law and Equity powers that could be given 
to a court of original jurisdiction. The Qazis in 
deciding cases were enjoined to think of God alone 6 
and, as they were nearer to Him because of their know- 
ledge of the Sacred Law and of their practice of it, 
their influence was enormous. 7 

The Chief Justice of the Empire and the Chief 
Qazis of the Provinces had, like the modern Indian 

x bandegane O Jail e shanahu ba qaulo tasdiq e Qazi 
asir o qatil mi shawand Waqae, p. 40 I.O.L. The Mughal 
Emperor Akbar started the practice of confirming the death 
sentences himself. Compare Monserrate, pp. 209-210. 

2 Darbar e Akbari. Cal. Tr. 1914. p. 64. 

8 Compare Mawardi J.R.A.S. 1911, p. 637. Sarkar (1935), 
pp. 1 6, 17. 

4 Compare Briggs I, p. 227. 

5 Hidayah, p. 336. Mirat I, pp. 278-283. 

6 Compare Widow vs. King Ghyas. Stewart, pp. 90-91. 

7 Compare Sarkar (1935) pp. 27, in. 



CONCEPTION OF JUSTICE IN MUSLIM STATES 87 

High Courts, the additional functions of supervising 
the work of the inferior courts and of recpmmend- 
ing candidates for appointment as Qa^is. 1 

Vigour of the Law \ ^S 

The Law of Shara' applied equally to all, and the 
officers of the state were treated 2 like ordinary citi- 
zens for personal disputes. Their position as such 
officers gave them no immunity from the rigour of 
the Law. Omar, the second Caliph of Islam, allowed 
his officers no privileges. 3 The Sultans and the Mu- 
ghal rulers in India followed the same course. If 
their officers acted under the immediate command of 
the Sovereign, they were probably not liable, but such 
a defence had to be proved strictly. 4 The Muslim 
Criminal Law did not favour any distinction between 
a ruler and his subject. 



1 (i) Compare Mirat I. p. 319. (2) Khafi Khan II. p. 
606. (3) Compare Mahmucl of Ghazna, p. 149. (4) Fatawa III. 
p. 388 Calc. (5) Al Qaza fil Islam, p. 9. 

2 See (i) State vs. Malik Faiz Briggs I. p. 253. (2) State 
vs. Prince Adil Erskine II, p. 445. (3) State vs. Yaqub and 
another Briggs IV. p. 517. (4) State vs. Moqarrab Khan 
Tuzuk S.A. p. 83. (5) State vs. Nurjahan. Tuzuk e Jahan- 
giri, Shibli, p. 3, pp. 30-32. (6)* State vs. Murad Sarkar III. p. 
437- (?) State vs. Faujdar Khafi Khan II 550. (8) State vs. 
Mirza Beg (Kotwal) Khafi Khan, II, p. 257. (9) State vs. 
Kam Bux Khafi Khan II, p. 436. (10) State vs. Qazi Mir 
Storia IV, pp. 118, 119. 

3 Compare (i) Ameer AH, Spirit of Islam, p. 279, (2) 
J.R.A.S. 1911, p. 664. 

4 Compare State vs. Shiqahdar, Manrique I. p. 424. State 
vs. (Kotwal) Mirza Beg, Khafi Khan II, p. 257. 



88 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

State versus the Subject 

The State could be sued 1 in the same manner as 
an ordinary citizen. There was no Droit Adminis- 
tratif to govern suits between the subject and the 
State and jurisdiction was vested in the ordinary State 
Courts to try such cases. Elghinstone thinks 2 that 
the courts into which the State came as the plaintiff 
or the defendant were separately constituted. No 
case has, however, come to my notice which suggests 
any such procedure. According to Kha^Khan 3 
even grave political cases were tried by the ordinary 
courts and no special tribunals were created. When 
a subject sought redress for an act done by an officer 
under colour of his office, the fine or compensation, 
if exacted, was paid either by the State or the officer 
concerned, and the accused officer was also liable to a 
sentence of imprisonment. In State versus Shiqah- 
dar (Manrique I, p. 424) it was held that a Police Officer 
was personally responsible for the wrongful arrest of a 
citizen and was liable to pay him compensation. In 
another case 4 due to a wrong order passed by a gover- 
nor, Khan Jahan, in a murder trial, the State had to 
pay damages to the heirs of the deceased. In Jahajx- 
girVtime (i6oj ^ 62,8)- a Police Kotwal, in order to 
prosecute an intrigue with a subordinate's wife, com- 
pelled the policeman to absent himself from his house 

1 Vide Cases (i) Haji Zahid and Pirji vs. State. Khafi Khan, 
p. 251 II. (2) Sher Md. vs. State (Collections). (3) Claim of 
the E. I. Co., for compensation (Capt. Hamilton I. p. 232). 
(4) Case. Waqae Alamgir, p. 72 I.O.L. 

2 (185 7) p. 420. 

8 Khafi Khan II, p. 728. 

4 Waqae Alamgir, Part I, p. 72, I.O.L. 



CONCEPTION OF JUSTICE IN MUSLIM STATES 89 

on a pretext of duty. The policeman's mothet came 
to the palace and shook Jahangir's chain of justice, 1 
which resulted in the Kotwal being sent to prison. 2 
In another case a favourite governor of Balban killed 
a man while drunk. He was tried and executed in 
public. 3 Khafi^Kha^Lgives 4 details of an interesting 
case when Mirza Beg, Kotwal of Lahore, went to ar- 
rest a Qasi who had been accused of an offence. 
The Qazi barricaded himself in his house. A fight 
ensued in which the Qazi was killed. His heirs 
brought a case against the Kotwal who was found 
guilty of murder and an order was passed to hand him 
over to the heirs of the Qazi in blood fine (Qisas). 
The Kotwal died during the pendency of appeal. 

In another case in the time of Auranggeb^. a wo- 
man made a complaint 5 againt a Faujdar, the result of 
which was that he was transferred to another locality. 

Akbar was severe in punishing oppression and 
encouragecT~~just complaints against the servants of 
the Crown by various proclamations. 6 

Shahjahanjpursued the same policy 7 and Aurang- 
zeb on one occasion publicly reprimanded a subordi- 
nate Qazi and dismissed him from office for showing 
partiality in one of his decisions. 8 The son-in-law of 



1 Ref. Rahbar e Daccan 1931. p. 19; Tuzuk e Jahangiri, 
p. 3 (S.A.) 

2 See Rahbar e Daccan 1931. p. 19. 

8 Briggs I. p. 253 State vs. Malik Faiz. 

4 P. 257!!. 

5 Khafi Khan II. p. 550. 

6 Compare Dow III, p. XXV. 

7 Complaint against Tarbiet Khan. Dow III, p. 173. 

8 Compare Dow III, pp. 334-335. Compare Aurangzeb by 
Lanepoole, p . 113. 



90 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Ahmad Shah, King of Gujrat, committed murder and 
the Qazi's order of compensation (Qisas) was re- 
vised by the King and the sentence was enhanced 
to one of death. 1 

'RJghts of non-Muslims 

Non-Muslims were of two classes i. Zimmis 
who had accepted the overlordship of the ruler and 
2. Musta'mins, who were given a guarantee of se- 
curity by the State, for a particular period and posses- 
sed all the rights of an Alien in a modern State. 2 The 
Shara' made no change 3 in the enjoyment by the non- 
Muslim inhabitants of their own religion, laws and 
ancient customs. The Prophet himself, by granting a 
charter 4 of liberties to non-Muslims, had set the ex- 
ample of recognising their personal laws, and history 
affords numerous instances when the assurances given 
by the Prophet were repeated by his successors, 5 and 
on one occasion as Dr. Vesey-Fitzgerald relates a non- 
Muslim was granted 6 a decree against the Caliph of 
Baghdad by his own court of Law. 

Non-believers in the Faith were, in theory, under 
specific disabilities in regard to giving evidence in 
court against a 'believer' but in practice these were 
seldom adhered to. The Hanafi school which had 



1 Mirat I. p. 49. 

2 Compare Spirit of Islam by Ameer Ali, pp. 268-279. 

3 Compare Ameer Ali Muh. Law II. p. 33. 

4 See Kitabul Kharaj, p. 299; Futuhul Baldan, p. 65. 

5 Compare (i) Maqrizi, pp. 492-499. (2) Kitabul Kharaj, 
pp. 86-7. (3) Futuhul Baldan, p. 125. (4) Risael e Shibli, p. 62. 
(5) Ameer Ali. Spirit of Islam, p. 274. (6) Orient under 
the Caliphs by S. Khuda Bux, p. 225. 

6 p. ii. Muhammadan Law. Compare Rahim, p. 383. 



CONCEPTION OF JUSTICE IN MUSLIM STATES 91 

obtained predominance in India was more Catholic 
than others in its treatment of non-Muslims. It 
was one of Abu Hanifah's maxims that judicial discre- 
tion on important matters was justified on grounds 
of Istislah (public policy) and thus courts could re- 
frain from applying the Quranic Law to non-Muslim 
in individual cases 1 vide State versus Islam Khan 
and other cases given in Elliot IV, pp. 26-27. Manrique 
(1629-1643) records 2 a trial where, contrary to judicial 
practice, evidence of non-Muslims was accepted 
against a large number of Muslim accused. The 
admission of one of the accused was under the Law 
not considered sufficient. In the course of the judg- 
ment the court observed "The Emperor who had 
conquered these lands from the Heathens, had given 
his word that he and his successors would let them 
live under their own laws and customs" and he, there- 
fore, allowed no breach of them. 3 The non-Mus- 
lims were given the right of claiming compensation 
(Qisas) in murder cases 4 and in practice they were 
subject to the Qanun e Shahi and the Adjective Law 
only. In civil disputes between themselves their 
personal law was recognised but their disputes were 
usually referred to their own theologians (Pandits) 5 

1 (i) Jahangir excused non-Muslims from a number of 
taxes. Eraser MS. 228 Oxford. (2) Aurangzeb abolished 
many taxes on them. Sarkar (1920) pp. 122-130. (3) In many 
Treason cases death sentence was remitted. Tuzuk S. A.,p. 62. 

2 Travels II, p. 112. The Muslims were prosecuted for 
killing a peacock in a village inhabited by Hindus alone. 

3 Compare Hamilton's remarks in Hidayah, p. XIV. 

4 Compare (i) Kitabul Ikhtyar, Art. 544. (2) Spirit of 
Islam, pp. 274-275. (3) Fiqh-e-Firoz Shahi I.O.L. 

5 Compare (i) History of India by James Mill, III, p. 369. 
(2) Cambridge History of India III, p. 45. 



90 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Ahmad Shah, King of Gujrat, committed mutdet and 
the QazFs order of compensation (Qisas) was re- 
vised by the King and the sentence was enhanced 
to one of death. 1 

Rights of non-Muslims 

Non-Muslims were of two classes i. Zimmis 
who had accepted the overlordship of the ruler and 
2. Musta'mins, who were given a guarantee of se- 
curity by the State, for a particular period and posses- 
sed all the rights of an Alien in a modern State. 2 The 
Shara' made no change 3 in the enjoyment by the non- 
Muslim inhabitants of their own religion, laws and 
ancient customs. The Prophet himself, by granting a 
charter 4 of liberties to non-Muslims, had set the ex- 
ample of recognising their personal laws, and history 
affords numerous instances when the assurances given 
by the Prophet \vere repeated by his successors, 5 and 
on one occasion as Dr. Vesey-Fitzgerald relates a non- 
Muslim was granted 6 a decree against the Caliph of 
Baghdad by his own court of Law. 

Non-believers in the Faith were, in theory, under 
specific disabilities in regard to giving evidence in 
court against a 'believer' but in practice these were 
seldom adhered to. The Hanafi school which had 



1 Mirat I. p. 49. 

2 Compare Spirit of Islam by Ameer Ali, pp. 268-279. 

3 Compare Ameer Ali Muh. Law II. p. 33. 

4 See Kitabul Kharaj, p. 299; Futuhul Baldan, p. 65. 

5 Compare (i) Maqrizi, pp. 492-499. (2) Kitabul Kharaj, 
pp. 86-7. (3) Futuhul Baldan, p. 125. (4) Risael e Shibli,p. 62. 
(5) Ameer Ali. Spirit of Islam, p. 274. (6) Orient under 
the Caliphs by S. Khuda Bux, p. 225. 

6 p. ii. Muhammadan Law. Compare Rahim, p. 383. 



CONCEPTION OF JUSTICE IN MUSLIM STATES 91 

obtained predominance in India was mote Catholic 
than others in its treatment of non-Muslims. It 
was one of Abu Hanifah's maxims that judicial discre- 
tion on important matters was justified on grounds 
of Istislah (public policy) and thus courts could re- 
frain from applying the Quranic Law to non-Muslim 
in individual cases 1 vide State versus Islam Khan 
and other cases given in Elliot IV, pp. 26-27. Manrique 
(1629-1643) records 2 a trial where, contrary to judicial 
practice, evidence of non-Muslims was accepted 
against a large number of Muslim accused. The 
admission of one of the accused was under the Law 
not considered sufficient. In the course of the judg- 
ment the court observed "The Emperor who had 
conquered these lands from the Heathens, had given 
his word that he and his successors would let them 
live under their own laws and customs" and he, there- 
fore, allowed no breach of them. 3 The non-Mus- 
lims were given the right of claiming compensation 
(Qisas) in murder cases 4 and in practice they were 
subject to the Qanun e Shahi and the Adjective Law 
only. In civil disputes between themselves their 
personal law was recognised but their disputes were 
usually referred to their own theologians (Pandits) 5 

1 (i) Jahangir excused non-Muslims from a number of 
taxes. Fraser MS. 228 Oxford. (2) Aurangzeb abolished 
many taxes on them. Sarkar(i92o) pp. 122-130. (3) In many 
Treason cases death sentence was remitted. Tuzuk S. A.,p. 62. 

2 Travels II, p. 112. The Muslims were prosecuted for 
killing a peacock in a village inhabited by liindus alone. 

3 Compare Hamilton's remarks in Hidayah, p. XIV. 

4 Compare (i) Kitabul Ikhtyar, Art. 544. (2) Spirit of 
Islam, pp. 274-275. (3) Fiqh-c-Firoz Shahi I.O.L. 

5 Compare (i) History of India by James Mill, III, p. 369. 
(2) Cambridge History of India III, p. 45. 



92 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

or Assemblies 1 (Panchayets) or Jurors, as was the 
procedure adopted by the Caliphs of Baghdad. 2 Dis- 
putes among powerful non-Muslim nobles were some- 
times heard by the Emperor himself and non-Mus- 
lims always had the option of getting their cases tried 
by a Law Court assisted by a Brahman Pandit. This 
is explained in the following passage from the report 
of the Committee of Secrecy appointed by the House 
of Commons (Vol. IV, p. 324) (1772-1773) which re- 
commended the same system in Bengal: 

"And your Committee finds that the Gentoo 
(non-Muslim) subjects enjoyed a similar privi- 
lege with respect to all cases of a religious nature 
in which persons of that persuasion were parties; 
for that in every such Case it was necessary that 
the temporal Judge should be assisted by a Brah- 
man of that caste, particularly when that cause 
was of such a nature as might be attended with 
the consequence of forfeiture of caste". 

The Sultans preferred to follow the letter of the 
Law which, while granting complete toleration 
(Lakum dinakum-Quran) to non-Muslims, drew 
distinctions between 'believers' and 'non-believers*. 
Nevertheless, it was in their time that Hindu Kayasths 
began to monopolise Secretarial and other posts in 
the Government offices. During the Mughal period 
(1526-1857) Hindus were appointed Governors and 
Faujdars (Mirat II, p. 460) and were generally in charge 
of the Revenue Department and thus became an im- 

1 Kennedy, Vol. I, p. 308. 

2 Ameer AH History of the Saracens, p. 422. 



CONCEPTION OF JUSTICE IN MUSLIM STATES 93 

portant influence in state administration, 1 (Ferishtah). 
? s_ attitude towards non-Muslims may be 



gathered from the following proclamation issued 
by him: 2 

"No man should be interfered with on account 
of his religion and every one should be allowed 
to change his religion if he liked. If a Hindu 
woman fell in love with a Muhammadan and 
changed her religion she should be taken from 
him by force and be given back to her family. 
People should not be molested if they wished 
to build churches and prayer rooms or idol 
temples or fire temples". 

Apparently this attitude was adopted by His 
Majesty after he had taken a Hindu Rajput princess 
in marriage. Aurangzeb (1659-1707) took a more 
orthodox thougK a correct view of the Law (Jamee 
Umur saltanat wa maamlat mulki ra dar qalib e shari- 
yah) by enforcing the Zakat tax on the Muslims 3 and 
the Jazyah 4 on the rest. His predecessors had ex- 
empted their subjects from both these taxes on 
grounds of public policy. In general, however, 
no interference was shown 5 and the non-Muslims 

1 Briggs II, p. 292. MS. 370 I. F. (I.O.L.). Compare Capt. 
Hamilton, II, p. 24. 

2 Ain I. Blochman, p. 207. Tr. 

3 See Mirat I. p. 298. 

4 This is not the place to give any detail of the tax but 
from an order issued by Aurangzeb and preserved in original 
in the Collections and from a perusal of Mirat e Ahmadi I. p. 
297 it appears that the 'Jazyah' had a sliding scale. Exemption 
was given to minors, women, blind, lunatics, paupers and the 
crippled and its incidence was much less than that of the Zakat. 

6 Compare (i) Capt. Hamilton II, p. 24. (2) Beveridge I, 
p. 141. (3) I. O. L. Records. Home Misc. No. 529, pp. 585, 612. 



94 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

continued to "fill public offices and posts of trust 51 
as Aurangzeb thought that matters of state were sepa- 
rate from religion (Umure dunya ra az mazhab che 
nisbat). 1 

The position of Women 

Under the Hanafi Law the position of women 
was almost on a par with that of men. 2 A woman 
could act as a Qazi (Kitabul Ikhtyar, p. 10). In pre- 
Sultanate period they had been debarred from study- 
ing the religious books or performing sacrifices to the 
deities and had practically no legal status. Soon 
after the establishment of the Slave dynasty, India 
had the privilege of a sovereign Queen and a woman 
Judge in the person of Sultan Raziah (1236-1240). 
According to Elphinstone 3 she decided suits of im- 
portance and evinced all the qualities of a just and 
able sovereign. During her time a number of women 
came to the fore-front in public life. 4 Later on as the 
practice of secluding women borrowed from the 
Hindus became prevalent among the Muslim nobility, 
women seem to have fallen into the back-ground. 

Although there were many women eminent in 
literature and the arts during the Mughal period, 
yet women held no judicial posts except that of Judges 5 
in cases concerning Harem women, where all the pro- 
ceedings were conducted by women only. 

1 Waqac Alamgir, p. 59. Letter of Aurangzeb. 

2 See Qaran "Hunna libasekum". Hiclayah (Hamilton) 
p. 341. 

2(1905), p. 368. 

4 Tabaqat e Nasiri (Text), p. 186. 

5 Roe, p. 85. 



CONCEPTION OF JUSTICE IN MUSLIM STATES 95 

There were no legal disabilities attached to wo- 
men, except that in the reign of Akbar they were not 
allowed to ride on horseback in the city. 1 Indeed in 
one respect a woman was placed on the same level 
as a man in a way in which she is not placed in modern 
India. If found guilty of the offence of adultery, a 
woman was made to suffer as severe a punishment 
as was given to the male co-accused. 2 In India to- 
day no woman is punishable for adultery, although 
a man is. 



1 Ain II 42 (Jarrett). 

2 Roe, pp. 190-191, State vs. Noble woman. 



CHAPTER III 
SYSTEM UNDER THE SULTANS 

The dynasty founded by Qutub Uddin Aibek in 
1206 was extinguished in 1290. After that several 
dynasties reigned in India before the Mughal advent 
in different parts till 1526 and some till 1680 A.D. 
They dominated the Northern, Central, Eastern and 
the Southern wings of the country. The sovereigns 
of Delhi possessed the largest extent of territory. 
The Kings of Bengal in the East and the Sultans in 
the Deccan also occupied important positions. With 
the exception of the two states of Bijapur and Gol- 
conda in the south where the Kings were Shiahs, the 
rulers in the rest of the country were Muslims of the 
Sunni persuasion, and, as I have said elsewhere, fol- 
lowers of the Hanafi school. But, as the judgments 
in the Baqiat and the Collections which relate to North 
and South India respectively show, there was no differ- 
ence between the Sunni and the Shiah systems of the 
administration of justice. The points on which the 
two schools differ relate to other matters, mainly the 
leadership of Islam and the authority of the first 
three Caliphs. Historians tell us that the judicial 
institutions of the Delhi Sultans were found in other 
Indian States and there seems no doubt that what the 
Kings introduced in Delhi w^as copied elsewhere. 
The offices of Qazi and Mufti were universal and, to 
quote concrete instances, the personnel of the Courts 



JUDICIAL SYSTEM UNDER THE SULTANS 97 

which dealt with the following cases and their proce- 
dure make it clear that there was a judicial system com- 
mon to all Muslim India. 

1. State versus Sidi Maula, Barni, p. 211, North 
India. 

2. State versus Babaji (Collections). South 
India. 

3. Widow versus King Ghyas. Stewart, 
pp. 90-91. East India. 

4. State versus Yusuf. Briggs IV, p. 517. 
North-west India. 

5. State versus Prince. Mirat I, p. 49. West 
India. 

Even the practice started by Iltutmish, Sultan of 
Delhi, of being installed by a Chief Justice was adopt- 
ed. (Stewart, p. 101). Ferishtah tells us 1 that Mahmud 
Shah, the Bahmani ruler of Gujrat, was a 'strict promo- 
ter of the Law of Quran, permitting no neglect on the 
smallest point which occasioned the Qazis (Judges) 
to take cognizance of all deviations in points of morali- 
ty". Yusuf Adil Shah of Bijapur was deeply read in 
the Shara' law and "always warned his ministers to 
act with justice and integrity', 2 while another Yusuf 
Shah, King of Bengal (1474), was well informed in 
Law and frequently solved questions that perplexed 
the most experienced Qazis and the Muftis, 3 

Since the popular conception 4 of a King's duties 

1 See Briggs II, pp. 346-348. 

a See Briggs III, pp. 30-31. 

8 Stewart, p. 101. 

4 Compare (i) Tabaqate Nasiri, MS. 1886, Br. Mus. (2) 
Barni, pp. 39-43. (3) Quran, 'Lza Hakamtum Bainan Nas 
Tahkumu bil Adi.' 



98 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

in the Muslim world was to maintain justice and fair 
play between man and man and emphasis was laid on 
strict impartiality and enforcement of the Shara' Law, 
the States in this particular aspect preferred to work 
on a system which had already received the sanction 
of the Caliphs or leaders of Islam for years. 

Adherence to Shara 9 \~^^ 

The Sultans of Delhi were, generally speaking, 
strict adherents to the Law. In many cases they had 
won their thrones by a military coup. The ties of 
allegiance were personal and the Sultans, whether 
under the stress of circumstances or of their own free 
will, endeavoured to live up to the standard demanded 
of them by Islam in order not only to keep the army 
pleased but by redressing wrongs to retain popular 
support outside the army (Sujan Rae, p. 135). Among 
them Qutub Uddin Aibek (1206-1211) left a "perma- 
nent reputation" 1 and "his kingdom was governed by 
the best laws''. 2 Iltutmish (1211-1236) started the 
practices of hanging a chain of justice outside his palace 
and of going about incognito in order to see if justice 
was administered satisfactorily. 3 He issued orders 
that any person who suffered a wrong should wear 
coloured dress. 3 The reign of Iltutmish was noted 
for jurists well versed in the law and practice of Shara* 
(Barni,p. in). His successors Raziah, 4 Nasir Uddin 

1 Elphinstone (1905), p. 363. 
2 BriggsI,p. 199. 

3 Ibn Batuta, p. 112 (Lee). Compare Elliot III, p. 591. 
* Tabaqat e Nasiri, p. 185. MS. 1886. Br. Mus. Compare 
Elphinstone (1905), p. 3 68 - Elliot n > P- 33- 



JUDICIAL SYSTEM UNDER THE SULTANS 99 

Mahmud 1 (1246-1266), Balban 2 (1266-1286), Tughlaq 
Shah 3 (1320-1325), Fiioz Tughlaq 4 (1351-1388), Bahlol 
Lodi 5 (1451-1489) and Sikander Lodi 6 (1489-1517) 
maintained a "high level" of judicial administration, 
and as a result of their close observance of the rules 
of Shara', considered the dispensation of justice a 
religious duty Lazim e din e Haq dad dehi wa insaf 
sitani ast. 7 

Ala Uddin Khilji's interview 8 with his Chief 
Justice in which he declared that government was 
meant for Kings and religion 9 for the Qazis and Muf- 
tis, and Muhammad Tughlaq's address 10 to one of his 
Judges suggest an attitude of attempting to introduce 
new elements into the law on the part of some rulers, 
but they did not violate any of its essential require- 
ments and probably public opinion did not assist 
them in establishing traditions repugnant to the basic 
principles of the Shara'. 11 A little later in the time 
of Firoz Tughlaq (1351-1388) we find a code being 



1 Ibn Batuta, p. 114 (Lee). 

2 Barni, pp. 39-46. Compare Briggs I, pp. 250-266. 

3 Barni, p. 441. 

4 Barni, pp. 575-578. Briggs I, p. 461. 

5 Kennedy, I, p. 103. 

6 Kennedy, I, p. 108. Badaoni I, p. 313. 

7 Compare Tarikh e Sher Shahi I, K. C. C, p. 79. "No 
amount of worship can equal acts of Justice". Sher Shah. 

8 Barni, pp. 289-290. Nuzhatil Khwatir, pp. 166-169, Hyder- 
abad. 

9 Mulkdari wa Jahanbani ilaheda karest wa ahkame 
Shariyat ilaheda. Barni, p. 289. 

10 Badaoni, I, p. 239. Elliot III, p. 263. Compare Barni, 
pp. 510-514. 

11 The attempt on the part of King Qutub Uddin, 131 5-48, 
to appoint an incompetent man as Chief Justice was a dismal 
failure. Barni, p. 406. 



TOO ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

prepared in order to acquaint people with the correct 
Jaw, "so that there should be no violation of it". 



~&Spect for 

During the Sultanate 1 'Muftis' and Mujtahids 
learned men in Law of acknowledged repute and 
learning were employed in Courts to keep the Rulers 
informed of the correct rules of conduct. According 
to Barni 1 the salvation of Kings lay in their strict 
observance of the Shara'. "All breaches of the Holy 
Law were forbidden". 2 Paintings and pictures 
which savoured of idolatry could not be brought with- 
in the precincts of the Royal Court. 3 Zia Uddin Barni 
in describing the prevailing sense in the community 
in the reign of Ala Uddin Khilji says: 4 "During the 
last ten years of his reign, the heads of Muslims in 
general were inclined to rectitude, truth, honesty, 
justice and temperance" (p. 341). 

Influence of Abbaside Institutions 

The Sultans, in fact, had little respite from the 
tasks of suppressing rebellions and extending con- 
quests in which they could evolve, like the Mughals, 
a definite administrative programme. It may have 
been for this reason that they found it convenient or 
perhaps it was due to their reverence for the tenets 
of Islam that they elected to recognise the Caliph 
of Islam in Egypt or Turkey as their spiritual over- 

1 Compare (i) Barni Address of Iltutmish, pp. 39-42, 
also p. 352. 

2 Compare Elliot III, p. 363; Barni, pp. 41-45. 
8 Compare Elliot III, p. 363. 

4 Elliot III, p. 207. 



JUDICIAL SYSTEM UNDER THE SULTANS IOI 

lord 1 and to adopt judicial institutions such as Diwan e 
Mazalim, Ihtisab, and grades of courts that existed 
under the Abbaside Caliphs. The ex-Minister of 
Istanbul, Azam Tara, who had served the Turkish 
Sultans was invited to become Wazir at Delhi 2 and the 
designation and the functions of the Law Courts also 
were modelled on Abbaside lines. Firoz Tughlaq 
(1351-1388) alone of the long line of the Sultans tackled 
judicial reforms seriously. This fact has induced a certain 
class of historians to say that the Muslim Sovereigns 
of Delhi governed India with "ready made' 3 institu- 
tions. But it is incorrect to suggest that the Sultans 
of Delhi applied the Shara' rigidly in India to Mus- 
lims and Hindus alike. Indeed we are told by the 
Shara* itself that the whole body of Islamic Law is 
not applicable to non-Muslims. "The non-Muslim 
subjects, that is the Zimmis, are not subject to the 
Laws of Islam; their affairs should be regulated accord- 
ing to the principle of their own religion". This is 
stated in the Fatawa e Alamgiri. The Islamic Civil 
Code, which governed questions of inheritance, mar- 
riage and other matters of a similar nature, was appli- 
cable only to Muslims. The Hindus in this particular 
had their own special La\v\ Certainly the Islamic 
Criminal Code, that is the Law which guaranteed 
security of life and property, was applied equally to 
Muslims and Hindus everywhere. But the Hindu vil- 
lages in general enjoyed true self-government in the 

1 Compare Briggs I, p. 210; Elphinstone (1905) p. 367. 
Barni, p. 497. Elliot III, pp. 249-250. Badaoni I, p. 232. 
Shams Siraj Afif, 273-274. 

2 Barni, p. 579. 

3 Sarkar Mughal Administration (1935), p. 6. 



102 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

administration of local affairs. The Sultans only inter- 
fered with previous judicial arrangements in the towns 
and subdivisions of districts, that is to say, in impor- 
tant administrative units. 

General Administration 

The Sultan was elected by the leading men at the 
Capital, as was the case when the early Caliphs of Islam 
were selected. Some powerful rulers were able to 
get their sons nominated as their successors. 

The installation 1 of a Sultan was usually done in 
the presence of the Chief Justice who was known 
as Qaziul Quzat and other officers. The Sultan was 
assisted by a Council of Ministers responsible to him 
for such departments as Finance, Army, Accounts, 
General Administration, Ecclesiastical, Law and Jus- 
tice. The Chief Ministers (Wazirs) of the Sultans 
were in some cases invested with judicial powers 
in addition to their executive duties, vide State versus 
Sh.Haidari,IbnBatuta (Lee) page 146 and State versus 
Khwajah Ahmad, Shams Siraj Afif, page 508. 

The Empire was divided into Provinces (Subahs). 
The Provinces in turn were composed of Districts 
(Sarkars) which were subdivided into Parganahs or 
groups of villages. 

The Sultan was represented in each Province by a 
Governor (Nazim) who had under him a number of 
"departmental heads". The Revenue administration, 
for example, was in the hands of the Diwan or the 
Provincial Finance Minister whose subordinates in 

1 Elliot III, p. 591; Stewart, p. 101. Ibn Batuta, Travels. 



JUDICIAL SYSTEM UNDER THE SULTANS 103 

the Sarkars were called Amils or Collectors of 
Revenue. 

The maintenance of Law and Order was in the 
personal charge of the Governor. For this purpose 
his principal agents were the Faujdars of whom there 
was one in charge of every district as principal execu- 
tive officer and commander of the local troops. The 
Police organisation in the districts was under the 
Faujdar although there was an immediate command- 
ing officer, the Kotwal, in the cities and the "Shiqah- 
dar" in the Parganahs. (Barni). 

The Governor as representative of the sovereign 
was also the Chief Judicial officer in the Province but 
there was a regular department of Justice Mahekmae 
Qaza 1 working in each province under the Chief 
Provincial Qazi (Qazi-e-Subah) and each district and 
town had a Qazi, as was the practice among the 
Abbaside Caliphs. 2 

The Ecclesiastical department or Mahekmae 
Shariyah had its separate Chief in the Sadre Jahan at 
the Imperial Capital. Like the Chief Ecclesiastical 
officers of the Anglo-Saxon period he had an impor- 
tant share in the administration of justice. He was, 
in the absence 3 of the Sultan, the presiding Judge in 
the Courts of Criminal (Mazalim) 4 and Civil Appeal 
(Risalat). 5 The inferior Qazis were selected from 

1 Badaoni, I, p. 318, (Ranking). 

2 Compare Ameer All: History of Saracens, p. 422; Is- 
lamic Culture, 1927, p. 336; Holden: Mogul Emperors, p. 38. 

3 According to Badaoni Muhammad Tughlaq himself 
presided. 

4 Tabaqat e Nasiri: Islamic Culture, 1927, p. 333. 

5 Barni, pp. 153, 374, Br. Mus. MS. Or. 1887. 



104 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

among the "graduates in Law and Divinity" (El- 
phinstone 1857, P- 4 21 )- 
I The Department of Justice Mahekmae Qaza. 

I. CENTRE 



Courts 

1 . Diwan e Mazalim 

(MS. Or. 1886) 

2. Diwan e Risalat 

(Barni, p. 374) 

3. King's Court 

(Singly) 

4. Chief Justice's 
Court 

j. Sadre Jahan's 
Court 

6. Diwan e Syasat 
(Barni, p. 497) 
(New Series) 



A. COURTS 

Functions 



Presiding officer 
Sadre Jahan 



Highest Court 
of Criminal 
Appeal. 1 

Highest Court Sadre Jahan 
of Civil Appeal 

All kinds of Sultan 
Cases 

All kinds of Qazi ul 
Cases Quzat 

Ecclesiastical Sadre Jahan 
cases. 

Temporary for Muhammad 
sanctioning cri- Tughlaq 
minal prosecu- 
tions. (1345- 
1350 



B. OFFICERS 

i. The Sultan 

The Sultan presided nominally over Courts i and 
2 but seldom sat in them. In the King's Court he 
could try cases singly both as an original and as an 
Appellate Judge. His Court was the highest Court 



1 Compare J.R.A.S. 1911, p. 655. 



JUDICIAL SYSTEM UNDER THE SULTANS 105 

of appeal in the realm. 1 Sitting singly he was assis- 
ted by two Muftis of acknowledged legal reputation 
in applying the Law. 

2 . Sadre Jahan or Sadre Kul 

The Chief Justice or the Qaziul Quzat was the 
titular head of the Empire judiciary from 1206-1248. 
In about 1248 A.D. Sultan Nasir Uddin created the 
superior post of Sadre Jahan and appointed Qazi 
Minhaj Siraj Chief Justice to it. He was also appoint- 
ed President of the Diwan e Mazalim (Court of Cri- 
minal Appeal) of .the Empire which was also estab- 
lished by Sultan Nasir Uddin. Since then the Sadre 
Jahan became the de jure head of the Empire judiciary. 2 
He was also made Chief of the "Ecclesiastical Depart- 
ment" which had remained under the Chief Justice 
till 1248 A.D. On the judicial side his duties may be 
compared with those of the Lord Chancellor of Eng- 
land. He sat on the King's Bench occasionally, 
tried original cases 3 and recommended candidates for 
appointment as Qasis. His own (Sadr) Department 
issued letters of appointment to those who were 
selected. According to the Institutes 4 of Taimur the 
'Sadr' in Muslim Turkistan was an officer of "illus- 
trious dignity appointed to watch over the conduct 
of the faithful and had no judicial duties". When 
Qazi Minhaj Siraj was elevated to this office in 1248 
the Chief Justice was Qazi Zia Uddin who did most 

1 Compare Beveridge I, p. 102. 
2 Barni, p. 580. 

3 Badaoni I, p. 239. Muhammad Tughlaq vs. Jami. 

4 Compare Holden: Mogul Emperors, p. 38. 



106 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

of the judicial work. 1 The intention seems to have 
been to keep these two offices separate 2 but Ala Uddin 
amalgamated them into one in the person of Qazi 
Sadr Uddin Arif. 3 Perhaps as Barni thinks (pages 
3 5 1-3 5 2) he was too particular in his selections. Sultan 
Firoz Tughlaq again separated them 4 for some time. 

The office was for life. 

The main duties of a Sadre Jahan as given in the 
letter of appointment copied in Tabaqate Nasiri 
(page 175) were: 

1. Qaza Decision of Cases. 

2. Khitabat Grant of titles. 

3. Imamat Leadership in Prayers. 

4. Ihtisab e Kulle Umur Sharai Censorship of 
morals and supervision over affairs connected with 
religion. 

According to Barni (page 580) the Sadre Jahan 
exercised supervision over Educational establishments 
and Law officers. 

The Sadr department also had charge of the grant 
of stipends to learned men and of land to the poor. 
All claims connected with these grants came up for 
hearing before the Sadr. Badaoni speaks of such cases 
as civil suits. The Sadre Jahan was represented in 
the Provinces by the Sadre Subah and in districts by 
Sadre Sarkar. 

The Sadre Jahan and his department had no direct 
concern with the Diwan-e-Syasat, the Court of Prose- 

*Br. Mus. Or. 1887. 

2 Compare Barni, p. 428; Elliot II, p. 327. 

3 Barni, p. 247; Compare Elliot II, p. 261 also Barni, p. 352. 

4 Barni, pp. 579-580. 



JUDICIAL SYSTEM UNDER THE SULTANS 1 07 

cutions, temporarily created by Muhammad Tughlaq 
and abolished by his successor. 

Chief Justice x ^,.^ 

Most of the actual duties of the head of the Judi- 
ciary were carried out by the Chief Justice Aqzal 
Quzat 1 or Qazi ul Quzat. 2 

According to Ibn Batuta sometimes one or two 
eminent Qazis were appointed to his Court as Puisne 
Judges. The Sadre Jahan had other duties to perform 
and was not always present in Court. The Chief 
Justice and his Puisne Judges accordingly disposed 3 
of all the appeals that came up before the Diwan e 
Mazalim or the Diwan e Risalat from the Courts of 
the Chief Provincial Qazis or the Governors on the 
appellate side and also tried all cases that were filed 
before these Courts on the original side. A Qaziul 
Quzat was quite distinct from the Shaikhul Islam 
who had no office (Barni, pp. 341-343). 

Selection \^/ 

The appointment of the Chief Justice was usually 
made by the Sultan from "among the most virtuous 
(muttaqi tareen) of the learned men in his Kingdom" 
(allamae rozgar. Barni, p. 580). Ibn Batuta gives 
reference to Qazis and their disciples in his Travels 
(pp. 56, 71) and this suggests that the Qazis were 
occasionally teachers of law 4 who had the "ability 

1 Tajul Maasir MS. K. C. L, C. 

2 Ibn Batuta. Elliot III. p. 591. 

3 Compare the duties of the Lord Chief Justice of Eng- 
land in relation to the Lord Chancellor. 

4 Compare (i) Selection of Qazi Minhaj as Chief Justice 
(Or. 1887. Br. Mus.). (2) Barni, pp. 43, 353. 



108 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

to give correct judgment" (mustahiq jawab dadane 
fatwa). Sometimes the selection was unpopular 
and public resentment was shown as in the 
case of Qazi Hamid Uddin Multani by Ala 
Uddin Khilji 1 and of Qazi Zia Uddin by Qutub 
Uddin. 2 The King's letter of appointment was 
like the modern "Letters Patent" of the British Sove- 
reign elaborately written out. The incumbent was 
given a special audience 3 to receive it. Muhammad 
Tughlaq in appointing Ibn Batuta as Judge of the 
Chief Justice's Bench said:"Do not suppose that your 
office of Judge of Delhi will cost you little trouble. 
On the contrary it requires the greatest attention". 
(Travels (Lee) p. 148.) The incumbent of the office 
of Qaziul Quzat held it for life and there was no age 
limit. 

Removal ^^x' 

A Chief Justice could be dismissed or degraded 
as a Qazi of lower rank by the Sultan at his pleasure 4 
vide case of Qazi Jalal Uddin, Badaoni (Ranking) 

I, p. 234. Tabaqat e Nasiri, p. 194. 

Qazi Imad Uddin Shakurkhani's character was 
doubted and he was removed in 1248 A.D. (Elliot 

II, p. 349). King Moiz Uddin Bahram executed Qazi 
Shams Uddin for treason without trial, and paid the 
penalty for so doing by losing his own life in a rebel- 
lion which the execution provoked. (Briggs I, p. 

1 Barni, p. 352. 

2 Barni, pp. 406, 408. 

8 Compare J. R. A. S. 1910, p. 767. 

4 Compare Syasat Namah, p. 77. 



JUDICIAL SYSTEM UNDER THE SULTANS 109 

227). Qazi Shams Uddin Meht was removed as the 
result of a successful appeal by the convicted person 
(Elliot II, p. 340). The removal of a Chief Justice 
from office, if not due to his partiality, did not dis- 
qualify him for re-appointment (Br. Mus. Or. 1887; 
Tabaqat e Nasiri Or. 1886). 

Other Functions \^^ 

According to Ibn Batuta a Chief Justice under 
the Sultanate was required to administer 1 the oath of 
office to the Sultan and also to be present at his instal- 
lation. 2 He was himself installed by the Sultan and 
had to swear an oath of allegiance to him. 3 The 
Chief Justice and other Judges at the Capital occasion- 
ally entertained the King. 4 Ibn Batuta complains that 
his huge salary was sometimes consumed in this man- 
ner. The Chief Justice was consulted when rules 
and regulations for the Empire were framed (Abbas 
Khan I, MS. p. 83, K. C. C.). He was sometimes 
employed on diplomatic missions 5 (Tabaqat e Nasiri, 
p. 223). Some of the Chief Justices were also given 
charge of educational institutions. 

His Influence '^-/ x 

The Chief Justice and the Puisne Judges of 
the Supreme Court were men of ability (Afazil e 

1 Ibn Batuta vide Elliot III, p. 591. 

2 Stewart, p. 101. 

3 Barni, pp. 246-247. Elliot III, p. 591. 

4 The Chief Justice and the Judges of the Allahabad 
High Court, U. P., India even today entertain the King's re- 
presentative the Governor when he visits Allahabad. 

6 Compare Br. Mus. MS. Or. 1887; Tarikh e Sher Shahi, 
Vol. I, p. 83, K. C. C. 



110 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Rozgar) 1 and were held in high esteem. Speaking 
of Qazi Sadr Uddin Arif who was both Chief Justice 
and Sadre Jahan 2 Barni writes, "His information was 
so wide and his judgment of men so remarkable that 
no one dared to put false pretence in his Court", 
(P- 35i.) 

Several of the Chief Justices of the Sultanate 
period were noted for their independence of charac- 
ter. In State versus Sidi Maula and others (Beveridge 
I, page 75; Badaoni, p. 171; Barni, pp. 210-211) Sultan 
Jalal Uddin wanted a sentence of death passed on 
Qazi Jalal Uddin who was accused of sedition but the 
Chief Justice refused even to convict him. Muham- 
mad Tughlaq on one occasion withdrew a suit of his 
own in the Chief Justice's Court when he found that 
the Court refused to favour him (Badaoni I, page 
239). Such incidents enhanced the prestige of the 
Chief Justice and his colleagues. 

On the other hand, incompetent Qazis were 
ridiculed 3 and even murdered, 4 perhaps on the prin- 
ciple that the whole community was responsible for 
the proper administration of justice. 6 Yet cases of 
incompetence were few and the Chief Qazis, as 
Elphinstone observes 6 were held in great respect and 
exercised considerable influence. 7 In State versus 



1 One of the most learned men of the times Akhbarul 
Akhyar MS. 18 K. C. C Br. Mus. Or. 1887. 

2 See p. 60. 

3 Barni, p. 352. 

4 Barni, p. 406. 

6 Compare Minhaj, p. 500. 

6 (1857) p. 297. 

7 Compare Tabaqat e Nasiri, p. 223. 



JUDICIAL SYSTEM UNDER THE SULTANS III 

Qazi Jalal Kashani "a Qazi of some repute" was prose- 
cuted for treason (Elliot III, pages 144-145) but no 
one would give evidence against him and he was 
acquitted. On another occasion Qasi Shams Ud- 
din Mehr sentenced a Darwesh (Holy mendicant) to 
imprisonment, but he was acquitted in appeal and the 
King then forced the Qazi to resign. 1 The result was 
a popular demonstration against the Royal Order. 

At another time when Balban had ordered the 
execution of a number of rebels, only the Judges of 
Delhi could venture to approach him for a reprieve 2 
and they succeeded. 

Salary 

In the order of precedence the Chief Justice held 
the first place 3 next to the Sovereign and the Sadre 
Jahan (if any). A passage in the Syasat Namah 4 
suggests that the Qazis ought to be paid generous 
salaries. In the pre-Sultanate period Judges had 
received 5 a portion of the fees deposited by the liti- 
gants in Court. The practice of paying Judges in 
Muslim countries had been started by Zaid Ibn 
Thabit 6 in the time of the Caliph Omar and seems to 
have been adopted by the Sultans. There is no defi- 
nite information available about exact figures. Ibn 
Batuta tells us that his salary as a Judge of the Chief 

1 Elliot II, p. 340. 

2 Elphinstonc, p. 373 (1905). 

8 Tabaqat c Nasiri, p. 177. Compare Smith History 
of India, p. 245. 

4 p. 40. 

5 See Chapter I. 

e Compare Ameer AH. History of the Saracens, p. 62. 

8 



112 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Justice's Bench was 12,000 Dinars a year 1 which would 
be equivalent to 12,000 a year today. A 'Jagir' 2 
was also provided for him which yielded an equal 
amount and he w r as allotted a state residence free of 
charge. Presumably the Chief Justice received consi- 
derably more. I give below extracts from a MS., 
containing the life history of Qazi Minhaj us Siraj 
Jurjani, 3 a Chief Justice in the i3th century, which 
illustrate the points discussed above. 

Birth 58 A.H. 



Parents came of a family of learned men. On 
the father's side he was related to Sultan Ibrahim ibn 
Masud of Ghazna. Parents died when he was a 
child. He was brought up by a Ghor Queen Mahe 
Malik who died in 607 A.H. At the age of 1 8 in 607 
A.H. i.e.., 1208 A.D. he was sent by the King of Ghor 
as a political attache, to the Court of Malik Nasir 
Uddin Abu Bakr and then stayed in Khorasan till 
624 A.H. (i.e., 1225 A.D.). 

Returned to India in 625 A.H. i.e., 1226 A.D. 
and joined the army of Iltutmish Sultan of Delhi 
1212-1236. Interviewed Iltutmish 16 Safar 625 A.H. 
i.e., 1226 A.D. Appointed Khatib 629 A.H. i.e., 
1230 A.D. and then Qazi at Gwalior holding charge 4 
of 

1. Qaza Trial of cases. 

2. Khitabut Preaching. 

1 Travels (Lee) p. 148. 

2 Ibid. 

3 See Br. Mus. Or. 1887. 

4 Compare duties of Sadre Jahan, p. 60. 



JUDICIAL SYSTEM UNDER THE SULTANS 1 13 

3. Imamat Leadership in prayers. 

4. Ihtisab Censorship of morals. 
Remained in this post for six years. 

635 A.H. i.e., 1236 A.D. 

Iltutmish died. Minhaj came to Delhi to the 
Court of his successor Sultan Raziah who appointed 
him Principal of one of the State Colleges, Madarsae 
Nasiryah in addition to his other duties. 

639 A.H. i.e., 1239-1240 A.D. 

Raziah died. As Qa2i of an important province 
(Gwalior) he approved of the succession of Behram 
Shah to the throne. The latter appointed him the 
Chief Preacher of the State and later created him Chief 
Justice of the Empire. At this time the Chief Justice 
was also the Qazi of the Capital. 

1240 A.D. 

An attempt was made by the people to assassinate 
Behram and the Qazi. The former was killed, but the 
latter escaped and resigned his office. 1241 A.D. 

Joined the Court of Tugha Khan, Governor of 
Oudh, 641-643 A.H. i.e., 1243-1245 A.D. and held 
diplomatic appointments. 

Returned to Delhi in 643 A.H. i.e., 1245 A.D. 
and was re -appointed Qazi of Gwalior and Principal 
of the Madarsae Nasiryah and effected a reconciliation 
between Sultan Mahmud and Balban. Honoured 
by Mahmud in 644 A. H. i.e., 1246 A.D. and started 
writing his "Tabaqat e Nasiri". 

Appointed Chief Justice again in 649 A.H. i.e., 



114 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

1151 A.D. by Mahmud but removed from office in 
651 A.H. i.e., 1253 A.D. mainly, it is said, owing to an 
intrigue on the part of Imad Uddin Raihan, a power- 
ful noble. 

Became a recluse. (Khana Nashin). 

Nasir Uddin created him Sadre Jahan on Rabi 
I 20. 652-653 A.H. i.e., 1254-1255 A.D. and he was 
for the third time appointed Chief Justice at the end 
of 653 A.H. i.e. 1255 A.D. 

Died about 698 A.H. i.e., 1300 A.D. 

The Chief Justices of the Sultans of Delhi, in 
chronological order, were: 

Qazi Wajih Uddin Al Kashani, 

Qazi Nasir Uddin. 

Qazi Ikhtyar Uddin. 

Qazi Malik Zia Uddin Muhammad Junaidi. 

Qazi Jalal Uddin Kashani (First appointment). 

Qazi Shams Uddin Mehr. 

Qazi Minhajus Siraj (First appointment). 

Qazi Imad Uddin Shakurkhani. 

Qazi Jalal Uddin Kashani-(Second appointment). 

Qazi Minhajus Siraj (Second appointment). 

Qazi Shams Uddin Bahraichi. 

Qazi Minhaj us Siraj (Third appointment). 

Qazi Malik Nizam Uddin. 

Qazi Mo ghees Uddin of Bayana. 

Qazi Hamid Uddin Multani. 

Qazi Zia Uddin "Qazi Khan'. 

Qazi Sadr Uddin. 

Qazi Kamal Uddin. 

Qazi Jalal Uddin Karmini. 



JUDICIAL SYSTEM UNDER THE SULTANS 

Qazi Zia Uddin. 
Qasi Sama Uddin. 
Qazi Mian Bhua. 



attached to the Chief Justice's Court 

i.^ Mufti. (Barni, page 441) 

He was a lawyer attached to the Court in order 
to expound the Law. His position w r as like that of a 
'legal' assessor. The Muftis of the Chief Justice's 
Court were lawyers of eminence. They were in theory 
appointed by the Sultan, but candidates for this office 
were selected by the Chief Justice. 

The Judge had to accept the view of the Law 
given by him and in case of difference, reference was 
made to the higher Court, that is of the King. 

2. Pandit. 

In civil cases, arising out of the Personal Law of 
the non-Muslims which came before the Court, the 
Law was explained by a Brahman Lawyer, usually 
known as a Pandit. The status of a Pandit was the 
same as that of a Mufti. The practice of employing 
Pandits was a modification of the system of the Abbasi- 
de Caliphs who left the decision of cases relating to 
civil rights among non-Muslims to their own com- 
munal heads. 1 

3 . Mohtasib. (Barni, page 44 1 ) . 

The censor of Morals or the Mohtasib was in 
charge of prosecutions under the Canon Law on the 

1 Compare Ameer All. Islamic Culture, 1927, p. 333. 



Il6 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

original side. In appeals he answered for the pro- 
secution. 

N The Caliphs of Baghdad had a department of 
AJ Hisbah' which watched over the private moral 

conduct of the citizens lest it might affect adversely 

the administration of Laws. 

The appointment seems to have been made first 

in the reign of Iltutmish (1211-1236). 

4. Dadbak. (Barni, page 441). 

See under Provinces. 
2. Qa^i-e-Urdu (Badaoni I, page 170). 

Was the Qazi in the Cantonment area. 

II. Provinces (Subah) (Iqta) 
Provincial Headquarters. 

A. COURTS 

1. Adalat Nazim Subah. Governor's Court 
Original and Appellate. 

2. Adalat Qazi-e-Subah (Chief Provincial Qazi) 
C^aon Law and Common Law Court. Original 
and Appellate. 

^--'3- Governor's Bench Highest Appellate Court 
in the Province. Original Jurisdiction. 

4. Diwan-e-Subah Revenue Court. Original 
and Appellate. 

5. Sadre Subah Ecclesiastical Court. Special 
Benches could be constituted by the Sultan to try 
my case. 



JUDICIAL SYSTEM UNDER THE SULTANS II J 

B. OFFICERS 
i. The Governor (Na%tm-e-Subaft). 

He represented the Sultan in the Provinces and 
had, like him, original and appellate jurisdiction. 

In original cases he usually sat as a single Judge. 
Appeals from his judgments could be filed in the 
central appellate courts. 

When he heard appeals he sat on a Bench of 
which one member was certainly the Qazi-e-Subah. 
Whether there were others is not quite clear. The 
appeals came from all the courts in the Province and 
they could also be filed from the Court of the Qazi-e- 
Subah. Presumably the latter did not sit to hear 
his own appeals as the Law prohibited this. 1 

Appeals against the decision of this Bench could 
be taken to the courts at the centre, perhaps on the 
principle that the Sultan's Court possessed inherent 
jurisdiction to hear them. 2 

Land Revenue cases were heard by the Governor 
or by his Finance Minister, the Diwan. The Qazis 
had no jurisdiction to hear them. This distinction 
between Revenue and Civil Courts is still preserved 
in modern India, and certain cases involving ques- 
tions of Land Revenue Law are even today outside 
the jurisdiction of the ordinary Civil Courts, It is 
unlikely that his other duties permitted the Gover- 
nor to do much judicial work himself, and the main 

1 Hidayah Book XX, p. 338, as he may be biassed. 

2 Vide appeals heard by Sikander Lodi. Beveridge I, 
p. 102. Compare J.R.A.S. 1911, p. 655. Practice of the Ab- 
bas ide Caliphs. 



Il8 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

burden seems to have fallen on the Qazi-e-Subah 
judging from such records as have survived. 

2 .^ ')a%j-e-Subab 

The Chief Provincial Qazi was known as the 
Qazi-e-Subah. According to Baihaqi 1 he was some- 
times designated Qazi-ul-Quzat, though this seems 
to have been a courtesy title reserved, according to 
other historians, for the Chief Justice of the Empire. 
The Qazi-e-Subah had powder to try civil and criminal 
cases of any description and to hear appeals from 
the Courts of District Qazis. Revenue cases, as 
already stated, were excluded from his jurisdiction 
which was specified in his letter of appointment. 
The Court of the Qazi-e-Subah represented the 
present chartered High Courts of the Presidency 
towns in British India, except that it was a Court 
of one Judge only. The Qazi-e-Subah held rank 
in the Province next to the Nazim and was entirely 
independent of him except that appeals against his 
decisions could be preferred to the Nazim, who 
represented the Sultan in the Provinces. He was 
President of the Tribunals which were constituted 
to hear important cases involving offences against 
religion. 

He was also expected to supervise the adminis- 
tration of justice within his Province and to see that 
the Qazis in the outlying places carried out their 
duties in a proper manner. 2 

l p. 246. 

2 Compare Sultan Mahmud of Ghazna by Dr. Nazim, 
p. 149. 



JUDICIAL SYSTEM UNDER THE SULTANS 

He was selected by the Chief Justice of the 
Empire or by the Sadre Jahan and appointed by the 
King. Reputation for learning and scholarship and 
a high character (Qa^a ilm-e-mujarrad nest} were 
considered necessary qualifications. 1 He could be 
transferred to other post, removed or degraded by 
the Sultan. 2 Sher Shah appointed as Governor of 
Bengal Qazi Fazilat Qazi-e-Subah of the Province 
of Bihar. 3 

His other duties included those of paying an 
official call on the Governor when appointed, and 
recommending candidates for appointment as Dis- 
trict Qazis, as was the practice in the Abbaside Em- 
pire. 4 

A Qazi-e-Subah could be promoted as Qaziul 
Quzat. (Tabaqat e Nasiri. Raverty, pp. 686, 694). 

Attached Officers 

'""" (i) Mufti, (2) Mohtasib, (3) Pandit. (4) Dadbak. 
(Tabaqat e Nasiri. Raverty, pp, 788-790). 

Dadbak 

One of the officers attached to the Court of the 
Qazi-e-Subah was the Dadbak. 5 According to Bar- 
ni, he was an administrative officer whose duty was 
to see that "all persons high or low came to Court 
when summoned" and probably to regulate filing 
of plaints and appeals (Raverty T. N. p. 790). He 

1 Tazkiratul Ulema, p. 15. Badaoni I, p. 324. 
2 Case of (i) Qazi Taj Uddin Barni, p. 348. (2) Qazi Jalal- 
Kashani. Elliot III, p. 145. 
8 Badaoni I, p. 365. 

4 Compare History of Saracens. Ameer Ali, p. 188. 

5 Compare Elliot III, p, 126; Barni, p. 441. 



1 20 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

was thus a Registrar or Clerk of the Court. Ibn 
Batuta thinks that this post was one of honour. The 
author of Tabaqat e Nasiri also speaks of the Chief 
Dadbak attached to the Chief Justice's court in high 
terms (Raverty, p. 790). 

3 . Diwan-e-Subah 

A Diwan was the Revenue and Finance Minister 
of the Province. He was the final authority in the 
Province in Land Revenue cases. Appeals from his 
orders lay to the Governor or the Sultan. 

4. Sadr-e-Subah 

He may be called the chief Ecclesiastical officer 
in the Province. Strictly speaking, he was not a 
judicial officer, although in Canon Law cases he 
sat on a Bench with the Qazi-e-Subah. He repre- 
sented the Sadre Jahan in the Province in matters 
connected with the grant of stipends, land etc. for 
education and religious purposes, and decided claims 
in respect of these items which were excluded from 
the jurisdiction of the Qazis. 1 

I//. District Headquarters (Sarkars) 

A. COURTS 
Jurisdiction 

i. Qazi .. .. (i) All civil and criminal 

cases. 

(2) Appeals from (a) Parga- 
nah Qazis. () Kotwals. 
(<r) Village Panchayets. 

1 Compare Elphinstone (1857), p. 421. 



JUDICIAL SYSTEM UNDER THE SULTANS 121 

2. Dadbaks of Mir Civil cases of a petty na- 

Adls (under ture. 
Lodis only) Appeals lay to Qazi-e- 
Subah. 

3. Faujdars . . Petty criminal cases. (Bar- 

ni, p. 479). Appeal lay 
to Nazim-e-Subah. 

4. Sadr . . . . Grant of Land and Re- 

gistration cases. Ap- 
--" peals to Sadre Subah. 

5. Amils . . Land Revenue Cases. 

(Barni, pp. 450-500). 
Appeals to Diwan-e-Su- 
bah. 

6. Kotwals . . Petty Criminal Cases. 

Police Cases. 
~ ' No record of Appeal exists. 

B. OFFICERS 
i. 



The District Qazi was appointed on the recom- 
tfiendation of the Qa2i-e-Subah or independently 
by the Sadre Jahan, The person selected was usually 
one possessing a good knowledge of Law. 1 

He tried civil and criminal cases of every class 
and had jurisdiction to decide all questions of fact 
and law. 2 On questions of Law he w r as required 
to obtain the opinion of the Mufti. In criminal 
cases he could pass a sentence of death. 3 Civil cases 

1 Elphinstone, p. 421 (1857). 

2 Compare Syasat Namah, p. 40. 
8 Compare Ibn Batuta, p. 146. 



122 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

between the State and a subject could be filed in 
his Court. 1 

Among his duties the following are mentioned 
specifically. (Hidayah. Book XI. Fiqh-e-Firoz Shahi. 

1. To register marriages. 

2. To try Waqf and Trust Cases. 

3. To try cases relating to 

(1) Intestate property. 

(2) Minors. 

(3) Missing persons. 

(4) Lunatics. 

He was also required to supervise Jails. 

The district Qazi's position was one of indepen- 
dent trust and responsibility. His seal or signature 
on documents was considered a sufficient guarantee 
of genuineness. 2 In one case the Kings of Delhi 
and Jaunpur agreed to consider each other's obliga- 
tions in regard to the return of War prisoners, ful- 
filled if the Qazi of the district concerned certified 
that it was done. (Stewart, page 98). 

Among the officers attached to the District 
Qazi's Court were the Mufti, the Pandit, the Moh- 
tasib and the Dadbak. 

Court Staff 

The following minor officials 3 worked in a Dis- 
trict Qazi's Court: - 

i. Katib Writer of evidence and statements. 



1 Ameer All, Islamic Culture, 1927, p. 335. 

2 Stewart, p. 98. 

8 i, 2, 4, 5 were employed by the Abbasides as well J.R.A.S., 
1911, p. 637. 



JUDICIAL SYSTEM UNDER THE SULTANS 123 

2. Faqih Writer of Fatwas or Precedents. 

%; Nazir In charge of the Establishment. 

4. Subordinate Clerks. 

j. Barqandaz-Guards. 

Newswriters or Akhbar Nawis were attached 
to all the district Courts from the time of Ala Uddin 
Khilji to record the daily proceedings of the Courts 
for the inspection of superior officers (Barni, page 

284). 

2. 

He was appointed by the Governor. He had 
jurisdiction to try what are called in modern India 
"Security" cases, i.e. the binding over of potential 
or suspected criminals. His duties w r ere mainly 
executive and he commanded the local troops 1 
as the words Fauj and dar indicate. (Barni, page 479). 

3. Kotwal 

He had power to try petty criminal cases such 
as those punishable under the present day Municipal 
Acts. 

IV. Parganah Headquarters 
A. COURTS 

i. Qazi-e-Parganah (i) All civil and criminal 

cases. 

(2) Canon Law cases if 
any. 

z., Kotwal .. Petty criminal cases. 

1 Stewart, p. 382. 



124 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

B. OFFICERS 

1. Qa^f-e-Parganab. 

During the Abbaside rule at Baghdad, every 
city and large town had a Qazi. 1 The Ghaznavides 
had adopted this arrangement, 2 and the Sultans fol- 
lowed the same practice. The Qasi-e-Parganah had 
all the powers of a District Qazi except to hear 
appeals. 

He had also a staff attached to his Court similar 
to that of the District Qazi. 

2. Kotwal 

There was no Faujdar in towns. The Kotwal 
was the principal Executive officer and he also tried 
minor criminal cases. 

3 . Shiqahdar. (Barm, page 479) 

In some towns there was neither Faujdar nor 
Kotwal, but merely a Shiqahdar who had petty 
magisterial powers. He was mainly a Revenue 
officer (Barni, pp. 498-499), but was also required to 
assist in the prevention of crime. 3 

V. Villages. (Dehat) 
Court The Panchajet. 

The Parganahs were subdivided into groups of 
villages. For each group there was a local tribunal 
usually called the Panchayet or body of five leading 

1 Ameer All. Islamic Culture, 1927, p. 333. 

2 Mahmud of Ghazna, pp. 147-149. 

8 Compare some aspects of Muslim Administration by 
Tripathi, p. 307. 



JUDICIAL SYSTEM UNDER THE SULTANS 125 

men. The Sarpanch or chairman was appointed 
by the Nazim or the Faujdar. The Panchayet heard 
civil and criminal cases of a purely local character, 
and was held responsible for Law and Order (Briggs 
III, page 420). 

VI. Army 

COURT. Qazi-e-Urdu or Qazi e Askar. 

Every cantonment or military area had a Qazi 
of its own who w^as known as the Qazi-e-Askar. 
His jurisdiction was limited by the boundaries within 
which the troops were stationed. His powers were 
the same as those of a Parganah Qazi. 

In the constitution and jurisdiction of the Sul- 
tanate Courts, points that may be emphasised are 
these: 

1. All Courts possessed original jurisdiction. 

2. In practice Courts which also had appellate 
powers did not as a rule try cases in the first instance. 
As Courts of Appeal they had inherent powders to 
interfere in the proceedings of Lower Courts at any 
stage (Hidayah). 

In State versus Khwajah Ahmad and others, 1 
a murder case, the Appellate Court (Sultan) directed 
the Lower Court not to accept c blood fine'. 

3. A litigant could take his case to the Qazi-e- 
Parganah or to the District Qa2i or to the Qazi-e- 
Subah or to the Governor or to the Chief Justice 
or even to the Sultan in the first instance. 



1 Shams Siraj Afif, p. 508. Compare J.R.A.S., 1911, pp. 
655-6. 



126 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

4. The Qazi's powers in respect of the value 
of suits and of the character of alleged criminal 
offences were unlimited and from this point of view 
all the Qazis were on an equal footing. But the 
judgment of a Qazi stationed at a place which 
was a lower unit of administration, could be taken 
in appeal to the Qazi of a higher unit. 1 There were, 
so far as can be ascertained, no detailed rules limiting 
the right of appeals to any particular class of cases. 2 
No judgment delivered by a Qazi-e-Subah in appeal 
has come to my notice but from the practice pre- 
vailing in the Mughal period and from the nature of 
his appointment as the Chief Qazi of the Subah 
(MS. Or. 1886) I am of the opinion that a Qazi-e- 
Subah could hear appeals from the District Qazi's 
judgments. 

Chief features of the Sultanate 

The judicial administration of the Sultans of 
India had the following chief features: 

1. Their institutions bore a strong resem- 
blance to those of the Abbaside Caliphs. 

2. The Shara' Law and the decrees of the 
Courts were in general respected by the Rulers as 
was the practice during the Abbaside rule in Bagh- 
dad. 8 

3. Special officers (Mohtasibs) were appointed 
to prosecute people who were living an immoral 

1 Compare procedure adopted in Appeals. Beveridge 
I, p. 102. Re. practice during the Mughal period. See Elliot 

vn, P . i 73 . 

2 For details see Chapter on Procedure in Courts. 
8 Compare Ameer Ali. Saracens, p. 62. 



JUDICIAL SYSTEM UNDER THE SULTANS 1 2J 

and thus, according to Shara', an illegal mode of 
life. 

4. The village Panchayets were not disturbed. 

5. Muhammad Tughlaq established the Diwan- 
e-Syasat or Court of Correction for "hardened cri- 
minals". 1 This institution, however, was abolished 
by his successor Firoz Tughlaq. (Barni, pages 572- 

573)- 

6. Firo2 Tughlaq modified 2 the Ta'zir punish- 
ments prescribed by the Shara' and introduced the 
rudiments of a Code of Law. 

7. Sikander Lodi (1489-1 517) created a new post 
of the Judge of Common Law the Mir Adi. He 
did not possess all the powers of a Qazi, but, it seems, 
had jurisdiction to try civil cases, vide case of the 
Court of Mian Bhua, Mir Adi. (Kennedy I, p. no.) 

8. The King of Bengal (Yusuf Shah) started a 
system of calling for weekly reports from the subor- 
dinate judiciary about their work (Stewart, p. 101). 

9. Newswriters (Munhyan) were asked to send 
regular news about the daily work done by the offi- 
cers to the Sultan (Barni, p. 284. Beveridge I, 
p. 81). 

10. The system of employing Pandits to ex- 
pound the Law in civil cases between Hindus w^as 
introduced by Iltutmish on the Abbaside model. 3 

n. A number of corrupt judges were dismissed 
by Firoz Tughlaq (Briggs I, p. 464). 

1 Compare Camb. History of India III, p. 162. Barni, 
p. 497- 

2 Barni, p. 573. Compare Briggs I, p. 462, 

3 Compare Ameer Ali. Saracens, pp. 1 8 8, 422. 

9 



128 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

12. Wazirs or Prime Ministers could be em- 
powered to try special cases, vide State versus 
Khwajah Ahmad and others, Shams Siraj Afif, p. 508 
and State versus Shah Haidari and others, Ibn Batuta 
(Lee) p. 146. This was also the practice during the 
Abbaside rule. 1 

O^C SHER SHAH AND His REFORMS 

I have treated Sher Shah separately as his entry 
into the Indian political world as founder of the 
Sur^Dynasty in 1540 A. D. did not take place until 
the Mughal Empire had been established and tem- 
porarily dislodged, and he seems to me quite dis- 
tinct from the other Sultans. His name is associated 
with a great many reforms in the administration of 
the country. It was said by him that the "stability 
of Government depended on justice" (Stewart, page 
128) "and that it would be his greatest care not to 
violate it, either by oppressing the weak or permit- 
ting the strong to infringe the Laws with impunity." 

According to Briggs, 2 "Sher Shah was not more 
remarkable for his good sense and talents than for 
his justice towards his subjects. He left behind 
him many monuments of his magnificence and 
public justice prevailed in his Kingdom." 3 His 
reforms touched upon everything sometimes not 
quite, according to Abbas Khan,Jn conformity with 
the letter of the Law. They may be summarised as 
follows: 

- 1 Compare J. R. A. S. 1911, pp. 635, 656, 657. 
JjJ Vol. II, p. 124. 
3 Stewart, p. 144; Compare Elliot IV, p. 411. 



JUDICIAL SYSTEM UNDER THE SULTANS 129 

1. He introduced the system of having in the 
Parganahs separate Courts of first instance for civil 
and criminal cases. At each Parganah town he sta- 
tioned a civil Judge called a Munsif, a title which 
survives to this day, to hear civil disputes and to 
" watch the conduct of the Amils and the Moqad- 
dams," 1 officers connected with revenue collection. 

The Shiqahdars who had had up till now powers 
corresponding to those of Kotwals, were given 
Magisterial powers within the parganahs. They 
continued to be in charge of the local Police. 2 

2 . 'Moqaddams* or heads of the village councils 
were recognised and were ordered to prevent theft 
and robberies. 3 In cases of robberies, they were 
made to pay for the loss sustained by the victim. 4 
Police regulations were now drawn up for the first 
time in India. 5 

3. We are told at least that when a Shiqahdar 
or a Munsif was appointed, his duties were enume- 
rated. 

4. The judicial officers below the Chief Pro- 
vincial Qazi were transferred after every two or three 
years. 6 The practice still prevails in British India. 

5. The duties of Governors and their deputies 
regarding the preservation of law and order were 
emphasised. 7 

1 Elliot IV, p. 414. 

2 Erskine II, p. 443. 

3 (i) Zabdatut Tawarikh, p. 189. (2) Tarikh e Sher 
Shah I, p. 85 ,K. C.C. 

4 Ibid. 

5 Tarikh e Sher Shahi, MS., K. C. C. 

6 MS. Abbas Khan, Vol. I, p. 82, K. C. C. 

7 Elliot IV, p. 420. 



130 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

6. The Chief Qazi of the province or the 
Qaziul Quzat was in some cases authorised to report 
directly to the Emperor on the conduct of the gover- 
nor, 1 especially if the latter made any attempt to 
override the law. 

7. The Sultans had divided the Empire into 
Subahs (Iqtas), Sarkars and Parganahs. Sher Shah 
subdivided the Parganahs into Mahals or groups of 
villages for Revenue purposes. This arrangement, 
however, had no effect upon judicial administration. 
The Panchayets continued to work as before. 

The above reforms introduced by Sher Shah 
slightly altered the gradation of Courts in the dis- 
tricts as the table given below will show: 



i. Villages 



v/ 



The Panchayets were not disturbed. The head 
man, Moqaddam, was officially recognised and given 
Police powers in the locality. 

2. Parganahs 

~~~ ' ^ 

1. Munsif Tried Revenue cases, including 

those between "Zemindar" and tenant. 

2. Shiqahdai>~-He was now empowered to try 
petty criminal cases and was required as before 
to maintain order in the Parganah as well. 

3. AmU. His Court decided cases regarding 
the assessment of rent due to the Government and 
such cognate matters more or less of a departmental 
nature. (Elliot IV, pp. 413-414). 

1 Stewart, p. 143. 



JUDICIAL SYSTEM UNDER THE SULTANS 

3. Sarkars^ 

1. Shiqahdar-e-Shiqahdaran. (MS. Abbas K.C.C.). 
He was the Chief Magistrate of the District, 

and seems to have in this respect replaced the Fauj- 
dar in the time of Sher Shah. As mentioned in 
Elliot IV (page 414) he possessed powers presumably 
as a magistrate "to inflict heavy and exemplary 
punishment on the lawless'. It is not quite clear how 
he stood with regard to the Qazi, for actual offences 
were to be brought 1 for trial to the Qazi's Court, 
Probably the punishment alluded to was in the 
form of taking 'security' or other measures for the 
prevention of crime. 

2 . Munsif-e-Munsifan."' 

His main duty was "to watch over the conduct 
of the Parganah officials so that they might not 
"injure the people or embezzle the King's revenue" 
(Elliot IV., p. 414), and to settle all boundary dis- 
putes. 

The other arrangements remained as they were 
except that Kotwals were not appointed in unim- 
portant places. The author of "Sher Shah" 2 thinks 
that there were probably no Qazis and Mir Adls 
during his time. This seems unlikely. At any 
rate the statement is not supported by other evidence. 
Sher Shah was a strict follower of the Shara' who 
did not miss even the optional prayers, 3 and con- 
temporary writers make no mention of his having 

1 MS. 154. Abbas Khan, K. C. C, p. 85. "Moafiq Shara' 
Shareef". 

2 Qanungo, p. 399. 

3 Elliot IV, p. 410. 



132 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

limited or modified the jurisdiction of Qazis. Abbas 
Khan^ who is generally accepted as an authority 
for Sher Shah's reign, writes that persons accused of 
theft and robbery in villages were to be apprehended 
by Moqaddams and delivered over for trial accord- 
ing to law (Muafiq Shara' Sharif). This can have 
no other meaning except that they were to be tried 
by Qazis (MS. 154, Vol. I, pp. 85-86, K. C C). 



CHAPTER IV 

JUDICIAL SYSTEM UNDER 
THE MUGHALS 

The Mughal Government was established in 
India in 1526 A. D.J)y Zahk JLJddin Babat who de- 
feated the last Lodi Sultan of Dehli and brought 
the Sultanate to an end. His son, Humayun, was 
turned out of the country by Sher Shah Sur in 1540, 
but he regained his kingdom in 1555 and from 
that date the Mughals ruled India effectively until 
1750 A. D. and nominally up to 1857, when the last 1 
Mughal Emperor was succeeded by Queen Victoria 
as Empress of India, 

Administrative System 

The political divisions 1 of the Mughal Empire 
(Saltanat e Mughaliah) were practically the same as in 
the time of Sher Shah, The Emperor, 2 like the Sultans 
3f Delhi, was the head of the judicial and the executive 
departments and the centre of all civil and military 
authority ruling as an absolute monarch, the Shadow 
of God 3 (Ma ke sayae Khuda aim). All State offi- 

1 Compare Br. Mus. MS. Or. 1779 and MS. Abbas Khan 
K. C. C. Mirat Supp., p. 214. 

2 The Mughal rulers did not adopt the title of 'Sultan* 
and preferred to be known as 'Badshahs' or sometimes 'Shahen- 
shahs'. 

3 Compare Akbar Namah III, p. 2, Mirat II, p. 376, Tuzuk 
(Price) p. 15. 



134 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

rials were appointed by him. The gradation of offi- 
cers and their duties was uniform 1 throughout the 
provinces of the Empire (Jamee mumalik e mahroo- 
sah) and officials were transferred 2 occasionally from 
one province to another. According to Monserrate 3 
the selection generally was based on efficiency and 
capability and there was gradual promotion also. 
The salary of the officers was paid monthly. 4 It 
appears from the case of Mi^^ Muhammad Ghaus 
mentioned in Safir-e-Oudh (page 2) that the same 
system was adhered to even during the declining 
days of the Empire. The officers of the State other 
than those employed in the judicial department as a 
rule had military rank (mansab) based on numbers 
under their command, ranging from a platoon of 
ten to an army of ten thousand and in the cases of the 
Princes of the Royal family, to still larger forces. 5 
The officers were expected to provide a number of 
mounted men and to maintain them themselves. 
In certain areas Government entered into "trea- 
ties" with local landlords (Zemindars) such as those 
of Kathiawar, Rajpipla etc. who were not recognised 
as "rulers" but were allowed to pay a tribute (pesh- 
kash) and to be responsible to the central govern- 
ment for the maintenance of law and order 6 within 
their respective territories. 



1 Compare Sarkar (1935) p. 239, Mirat I, p. 268; Farman 
for the whole of India. 

2 Compare Mirat I, p. 331; Collections; Or. MS. 2011. 

3 Compare Commentary, p. 206. 

4 Br. Mus MS. 6, 599, f. 147. 

5 MS. Or. 1779. Br. Mus. MS. Or. 1906-1907 Br. Mus. 

6 Mirat Supp., pp. 190, 215. 



JUDICIAL SYSTEM UNDER THE MUGHALS 135 

The Central Government kept a department of 
Newswriters (Waqae Nigars) 1 who collected infor- 
mation locally and sent regular reports through 
special messengers 2 (Harkaras). Those attached to 
Courts of Judicature recorded the daily proceedings 
of those Courts (Collections). 

Secret reporters (Sawaneh Nigars MS. 6580 
f. 425) were further employed to send a consolidated 
report to the Emperor of all the officers in the place 
where they themselves were posted, by which pro- 
cess the news sent by the Waqae Nigars could be 
authenticated. 

The Central Government 

The Emperor had a council of ministers who 
were independently responsible to him for their 
respective departments, but the most influential 3 
among them was the Wazir or Vakil-e-Mutlaq (Su- 
jan Rae) or Dastur-e-Muazzam (Ruqaat-e-Alamgir). 
He was like the modern Prime Minister, usually in 
constant touch 4 with the head of the State. Except 
the judicial department, he had a controlling hand 
in all other spheres of administration, and the other 
ministers approached the Emperor through him 4 
in the normal course of business. 

The Revenue, Finance and Agricultural depart- 

1 Mirat Supp., p. 150. 

2 Mirat Supp., pp. 150-152; Storia II; pp. 331. 'Harkaras' 
are still employed in British India to carry official letters to 
officers in Camp. 

8 Compare Monserrate, pp. 208-209. "The Secretariat was 
presided over by a Chieftain of great authority and ability." 

4 Compare Ibn Hasan, pp. 130-136. 



136 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

ments were under the Diwan-e-Ala (MS. Add. 
26,239 f. 41). He was also the final court of Justice 
for Revenue cases. Sometimes the Diwan-e-Ala was 
also the Prime Minister in addition to his own duties. 
Military administration and the pay and accounts 
were under the Mir bakhshi and the administration 
of justice, jails, customs, baitul mal and mosques 
was entrusted to the Chief Justice, Qaziul Quzat or 
Aqzal Quzat (Alamgir Namah, page 232). The other 
ministers were: 

1. Darogha-e-Topkhanah or the Master Gene- 
ral of Ordnance. 

2 . Darogha-e-Dak (Post Master General). 

3. Mir Saman (Lord High Steward of the 
Imperial Household). Storia II, p. 419. 
He may be compared with the chief of the 
"Royal Cabinet" of Egypt. 

4. Sadrus Sudur in charge of the Ecclesias- 
tical Department. (Ain I, Blochman, p. 185). 

5 . Mohtasib-e-Mumalik-e-Mahrusah or the 
Chief Mohtasib. 

The Mohtasib, like the Attorney General of 
England, was the Chief Public Prosecutor in State 
cases. He was also the chief Censor of Morals and 
kept a watch on drinking of intoxicating liquor, 
prostitution and public morality. He was provided 
with a staff of Officers (Mansabdars) an-d footmen 
(Ahadis). Mulla Ewaz Wajih, a Chief Mohtasib of 
Aurangzeb's period, drew a salary of Rs. 15,000 
a year (Alamgir Namah, p. 392). 

The Emperor was the Commander-in-Chief of 



JUDICIAL SYSTEM UNDER THE MUGHALS 137 

the whole army and Navy (Sultan-ul-Bahrain) (Amir- 
ul Bahrain). 

( The most important change in the structure of 
the central government introduced by the Mughals, 
which has a bearing on the administration of justice, 
was in the position of the Sadr. Under the Sultans 
his authority to select Qazis and to grant land to 
learned men (madad-e-maash), gave him immense 
prestige and influence. Akbar issued orders that 
in the matter of the grant of land the Sadr was always 
to consult the Diwan, and he reduced his powers 
further by giving the control of the judiciary to the 
Qasiul Quzat. The position of the Sadr under 
the Mughals has been very clearly explained by Dr. 
Ibn Hasan in the Central Structure of the Mughal 
Empire. Briefly speaking the Sadr under the Mu- 
ghals still held an important position. All prosecu- 
tions under the Canon Law required his sanction and 
the letters of appointment for the posts of: 

1. Qazi-e-Subah and Qazi-e-Sarkar. 

2. Mohtasibs. 

3. Imam Leaders of prayers. 

4. Mutawallis or Superintendents of Trusts, 
and 'parwanas' for the stipends and bills for chari- 
table endowments, were issued by him or on his au- 
thority, (Mirat Supp., p. 149), and the Emperor gave 
him more latitude than to others in the matter of 
selecting his own departmental officers. 

Under the Sultans, the departments of Qaza 
(Justice) and Ihtisab (Censorship of morals) were 
under the Sadr (MS. OR. 1887 f - 4 Br - Mus O but 
Akbar (1558-1605) who was not in favour of so 



138 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

much authority being held by one person separated 
Justice from the Sadr. 1 The position of the Sadrus 
Sudur under the Mughals can be said to be substan- 
tially the same as it is now in the government of 
H. E. H. the Nizam of Hyderabad, Deccan, where 
the office of Sadrus Sudur is still retained. i 

Another significant change effected by the Mu- 
ghals was to give up the Abbaside practice of invest- 
ing the Prime Minister with judicial powers 2 which 
had been adopted by the Sultans. 3 The duties of 
the Prime Minister under the Mughal Emperors were 
confined to executive matters as were those of the 
Chief Justice to judicial. 

Provinces (Subahs) 

The following were the Provincial "heads": 

1. Subahdar (Mirat I, p. 133) or the Governor. 

2. Qazi-e-Subah (Mirat I, p. 321) or the Chief 
Qazi. 

3. Diwan-e-Subah or the Chief Revenue Offi- 
cer. 

4. Sadr-e-Subah (Mirat I, pp. 321, 335). He 
represented the Sadrus Sudur in the Pro- 
vince (Ain I, Blochman, page 270) and super- 
vised the work of the District Sadars and 
Mohtasibs in the Province. 

5. Bakhshi-e-Subah in charge of Pay and Ac- 
counts. (Mirat Supp., 150). 

1 The posts of Sadr and Qaziul Quzat are shown separately 
in Ain I, Bloch, page 185. 

2 See Chapter HI. 

8 Ibn Batuta (Lee) p. 146. Shams Siraj Afif, p. 508. 



JUDICIAL SYSTEM UNDER THE MUGHALS 139 

The Diwan was the Finance Minister of the 
Province and all miscellaneous departments such as 
Building (Taamir), Survey (Paimana Kash), Irrigation 
(Darogha-e-Ju-e-Ab), worked under him, (Br. Mus. 
MS. Or. 1779). 

Districts (Sarkars) 

The chief officers working in the Sarkars were: 

1. Qazi, in charge of administration of Justice. 

2. Faujdar, maintained Law and Order. (Mirat 
Supp., 145). 

3. Amalguzar (Ain II, Jarrett, pp. 43, 45) 
or Amils in the Deccan (Collections) settled 
Revenue. 

4. Bitikchi, Assistant to Amalguzar. (Ain II, 
Jarrett, page 47). 

5. Fotedar or Khazanadar (Treasurer). (Ain II, 
page 49, Jarrett). 

6. Sadr, Ecclesiastical Department (Mirat Supp. 
149). 

7. Sadr Amin. Land Revenue Cases (I. O. L. 
MS. 3301). 

8. Karkun or Karori, Collection of Revenue 
(Ain II, pages 43-47. Mirat I, page 307). 

9. Kotwal, Police (Ain II, Jarrett, 41, 43. Mirat 
I, page 1 68). 

Parganahs 

The staff of officers in a Parganah consisted of: 

1. Qazi-e-Parganah. In charge of Justice. 
(Mirat I, page 327; Farameen; Baqiat). 

2. Amil-e-Parganah (Mirat I, pages 327, 342). 



140 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

The collection of Land Revenue was made 
under his supervision. 

3. Qanungoe (Ain II, page 66), (MS. 6599) 
"was the refuge of the husbandmen" and 
assisted the Amil. 

4. Amin, Munsif and Karori (MS. Or. 2011 
Br. Mus.) (Farameen) (MS. 2907 I. O. L.). 
Decided Land Revenue and rent cases. 

5 . Karkun 

Land Revenue Department. (MS. Or. 2011). 

6. Wasan Kash. (MS. 6,599). 

7. Faujdar or Shiqahdar. In charge of law and 
order in the Parganah (Br. Mus. MS. 6,599). 

8. Kotwal represented the Faujdar in the 
Parganah in case no Shiqahdar was ap- 
pointed. 

Villages 

1. Pancbayet. Assembly of usually five men, 
in charge of Justice. 

2. Headman. President of the Panchayet, 
known as Moqaddam (Mirat I, page 49) or 
Chaudhri (Alamgir Namah, 595) (Dow III, 
page LVIII) and in charge of "Law and 
Order' (Farameen). 

3. Patwari. Representative of the Revenue 
Department and Recorder of rights (Ain II, 
p. 45. Jarrett). 

4. Village guard or Chaukidar or Rahdar. In 
charge of traffic and of Saraes where travel- 
lers lodged for the night. (Storia I, p. 68). 



JUDICIAL SYSTEM UNDER THE MUGHALS 141 

Seaports 

The administrative machinery in the seaports 
was different though it worked under the Governors. 
The chief officer in a port was known as Mutasaddi 
(Mirat I, p. 335) who had "agents" working for him 
in its subdivisions Baras (Mirat Supp., p. 188). There 
were Qazis, Mohtasibs and Sadrs but they were 
appointed by the Central Government. According 
to Mirat-e-Ahmadi 1 there were 27 ports and 45 
baras in the province of Ahmedabad only. The 
admirals (Mir Bahr) and other naval officers (Daro- 
gha) or Nakhudae Jahazat w r ere, as appears from a 
Manual prepared during the reign of Shahjahan, 
appointed directly by the Central Government (Br. 
Mus. Ms. Or. 1779). Civil officers of the Executive 
department, who held rank below that of a Faujdar, 
had to sign an agreement or 'Zamni-Namah' more 
or less on the lines of the covenants executed by 
officers of the Indian Civil Service in British India. 
Forms containing letters of appointment and of 
'Zamni-Namah' are given in Ms. 6,599 Dasturul 
Amal and OR. 2011 British Museum. 

The pay of the officers and their establishments 
was distributed monthly. (Ms. 6599. Br. Mus. 147). 
The Central Government kept a department of News- 
writers (Waqae Nigars) (Mirat Supp., p. 150) who 
collected information locally and sent regular reports 
through special messengers (Harkaras) 2 (Mirat Supp. 
pp. 150-2; Storia II, p. 331). Those attached to courts 

1 See supplement, p. 201. 

2 A term still applied to messengers who carry official 
letters to officers in camp in British India. 



142 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

of Judicature recorded the daily proceedings of Reve- 
nue Courts (Collections). 

Officers functioning as Courts 

(Arbab-e-Adalat. Khafi Khan II, p. 607). 

The Department of Law and Justice was known 
as the Mahekmae Qaza during the Sultanate, The 
word Qaza was, as it appears from Khafi Khan, re- 
placed by 'Adalat' under the Mughals and the word 
'Mahekmae Adalat* was generally adopted for the 
Department of Justice as distinct from Mahekmae 
Shariyah used for the Ecclesiastical Department. 1 

The Qazi, Mir Adi, Mufti and Darogha-e- 
Adalat belonged to the Mahekmae Adalat, but there 
were also officers of the Revenue and other depart- 
ments who had power to try cases such as the Diwan, 
Faujdar, Kotwal and Amalguzar. I accordingly pro- 
pose to discuss the functions of all such officers under 
one heading. 

I. At the Imperial Capital. (Darul Saltanat). 
J i. The Emperor. Like the English King of the 
early Norman and the Anglo-Saxon period, the 
Emperor was the first Judge of the realm and the 
"fountain of Justice". He tried original civil and 
criminal cases and also sat as the final aegis of appeal 
within the Empire. When the Emperor heard ap- 
peals he presided over a Bench consisting of the 
Chief Justice and Qazis of the Chief Justice's Court 
and decided questions both of Law and fact (Alamgir 
Namah, pp. 1097, 1102). As a court of first instance, 

. 217 f. 77.1. O. L. 



JUDICIAL SYSTEM UNDER THE MUGHALS 143 

he generally had the assistance of a Darogha e-Adalat, 
a Mufti and a Mir Adi (Alamgir Namah, p. 1077). 

Petitions were presented to him by the Darogha. 
If he required any authoritative interpretation of 
law he referred the matter to a Bench of the Chief 
Justice's court for opinion 1 or he constituted a special 
Bench for the purpose. 1 

The Emperor's Court, when it could be held, 
was popular and the public "made representations 
and appeals without any fear or hesitation and ob- 
tained redress from his impartiality." 2 

The officers attached to his Court were: 

1. Mufti. 

2 . Darogha-e-Adalat. 

3. Mir Adi. (Alamgir Namah, p. 1077, Bib. Ind.) 

4. Mohtasib. 

Their functions are described later in the 
chapter. 

2. The Qa^ul Quyat or the Chief Justice. (Mirat 
I, p. 340. Ain I, p. 185 Blochman). Next in import- 
ance to the Emperor was the Qaziul Quzat. He 
used to administer the oath of accession to the Sover- 
eign and to order "Khutbah" to be read in the Em- 
peror's name in the mosques in order to give vali- 
dity to his accession. (Storia I, p. 381). (Mirat I, 
pp. 240, 248). Some Chief Justices have been re- 
ferred to as Shaikhul Islam in Tuzuk-e-Taimuri, 
p. 67, Vol. I; Tazkiratul Ulema, p. 43, but this was 
not their official title. It was a name used as a mark 

1 Compare Dow III, p. xxx. Alamgir Namah, p. 1102. 

2 Compare Elliot VII, p. 158; Kennedy II, pp. 74-77; Storia 
III, p. 262. Anecdotes, p. 178. 



10 



144 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

of respect and is so used even today among Indian 
Muslims for the most learned man among them. 

The appointment of the Chief Justice was made 
by the Emperor (Fatawa III, p. 387). According to 
SirJ^Sarkari "men of high scholarship and reputed 
sanctity of character wherever available were cho- 



sen." 



The Chief Justice had power to try original 
civil and criminal cases, to hear appeals from and 
to supervise the working of the Provincial Courts. 2 
He was assisted by one or two Qazis of eminence 
who were attached to his Court as "Puisne Judges/' 3 

His duties included: - 

1. Leading the Friday and the Id prayers at 
the Capital. 

2. Attending state and other important fune- 
rals. 4 

3. Conducting marriage ceremonies of the Ro- 
yal Family (Alamgir Namah, p. 644) (MS. 
217 ff. 128-129 I. O. L.). 

4. Supervision of the enforcement of the Law, 
Ijra-e-Ahkam e Shariyah (Khafi Khan II 
606). 

In the matter of fresh taxation the opinion of the 
Chief Justice was invariably taken. The people in 
Gujrat once protested and withheld payment of 
dues on landed property until those taxes were sanc- 
tioned by Qazi Muhammad Akram, Chief Justice 

1 Sarkar (1935) p. 29. 

2 Compare Elliot VII, pp. 172-173; Mirat I, p. 319. 

3 Compare Dow III, p. xxx. 

4 Compare Aurangzeb III, pp. 161-163. 



JUDICIAL SYSTEM UNDER THE MUGHALS 145 

(MiratI, p. 339). Similar was the practice in other 
Muslim states in India which did or did not acknow- 
ledge the Mughal supremacy. 1 The Chief Justice 
was usually a man of reputation and influence. He 
or his 'Puisne' Judges were sometimes sent on impor- 
tant political missions 2 and one Chief Justice was 
appointed Governor of Bhakkar (Darbar-e-Akbari 
p. 67). 

Once when the Central Diwan delayed payment 
of money for the repairs of Court buildings, the 
Chief Justice approached the Emperor direct and 
obtained the necessary grant (Mirat I, p. 330). 

The Chief Justices were sometimes appointed 
directly from among eminent lawyers and some- 
times a Chief Provincial Qazi, as was in the case of 
Qazi Khan, was promoted to that office (Tazkira-e- 
Ulema-e-Hind, p. 54 Lucknow). The author of 
Maasirul Umara gives the following brief note about 
the career of one of the famous Chief Justices of the 
Mughal period. 

Abdul Wahab Vol. I, p. 235; Khafi Khan II, 
pp. 216-217, 438, 439. 

Grandson of M. Tahir Bohra of Patan (Gujrat). 
Born in Gujrat. His grandfather, who was a learned 
man, gave him special training in Theology, Jurisprud- 
ence and Law. He finished his education early and 
held discussions with noted lawyers of the time until 
he built up a unique reputation for scholarship and 

1 Compare Farameen, p. 221. 

2 Vide Cases of (i) Qazis Abul Fazl and Abu Said. Qaz- 
wini, pp. 255-256, 367. (2) Qazi Azeez (Hadiqat us Salatin, p. 
2 5 8 )- (3) Q azi Sadr Uddin Briggs IV, p. 522. 



146 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

piety (Dar wara' wa taqwa wa fan-e-Hadith yaganae 
rozgar gardeed). Started teaching Law and reform- 
ing his own community. Attracted the attention 
of Mirza Aziz Kokah, Governor of Gujrat who helped 
him. His reputation as a lawyer of sound judgment 
spread all over the country. In 1658 he was appoint- 
ed Qazi-e-Askar by Aurangzeb and shortly afterwards 
was created Chief Justice of the Empire. 

Went on leave in about 1676 on medical 
grounds. Resumed duty for a short period and 
died. 

The Chief Justices who served the Great Mu- 
ghals from 1560-1712 A. D. were: 

Qazi Mir Saiyad Muhammad. 

Qazi Jalal Uddin. 

Qazi Numllah. 

Qazi Hidayetullah. 

Qazi Muhammad Said. 

Qazi Muhammad Aslam. 

Qazi Abdur Rahman. 

Qazi Abdul Wahab. 

Qazi Ali Akbar (Temp.). 

Qazi ShaiHiul Islam Abdullah. 

Qazi Saiyad Abu Said. 

Qazi Khan Abdullah. 

Qazi Muhammad Akram. 

Qazi Mulla Haider (Qazi Khan). 

3. Qa^i of Delhi. The Imperial capital had its 
own Qazi who enjoyed the status of a Chief Qazi of 
a Province. In temporary vacancies he was some- 



JUDICIAL SYSTEM UNDER THE MUGHALS 147 

times appointed to act as a Qaziul Quzat. 1 

4. Qa^i-e-Askar. The military area in the 
Capital had its own Qazi (Qazi-e-Askar) who moved 
from place to place with the troops (Alamgir Namah, p. 
1102). Sometimes the officer was styled Qazi e 
Urdu. 

Officers attached to Courts noted above 
/ J 

1. Darogha-e-Adalat. Applications filed in each 

Court were received by an officer named Darogha-e- 
Adalat. 2 He was sometimes called Darogha-e-Ka- 
chehri. 3 Aurangzeb conferred the title of ^Fazail 
Khan" on one of his Daroghas. 4 

2. Mufti. One Mufti was posted in each Court 
to give legal opinions, but not to give any judgment. 
The Mufti attached to the Chief Justice's Court was 
known as Mufti-e-Azam or Sadre Jahan. 5 Manucci 
says 6 that there were two Muftis, but also says that 
'they acted as Judges/ He does not explain whether 
they were members of a Bench along with the Qaziul 
Quzat or whether they possessed independent juris- 
diction. In my opinion he is referring to the Qazis 
who acted as "Puisne Judges" of the Chief Justice's 
Court. His statement, however, does not alter the 
position of the Mufti. 

3. Mohtasibs. The Mohtasibs attached to the 

1 Maasir-e-Alamgiri, Gale.; Tazkira-e-Ulema-e-Hind, p. 54; 
Alamgir Namah, pp. 933-934. 

2 Br. Mus. MS. Addl. 26, 239 f. 42. 

3 Br. Mus. MS. Addl. 6, 599 and Or. 1779 f. 232. 

*I. O. L. MS. 217 f. 116. 

6 Ain I, Bloch, p. 185. The office is still retained in Hyde- 
rabad State as Mufti-e-Azam. 

6 Vol. II, p. 419, Storia. 



148 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Capital were generally the Prosecutors in Canon 
Law Cases. 

4. Mir Adi. He was an administrative officer 
like a Darogha attached to Courts. For details see 
under 'Sarkar'. 

Din>an-e-Ala (Add. MS. 2623 9, /. 41). 

The duties and functions of this high official 
have been discussed in detail by Dr. Ibn Hasan. 1 
He was the final authority on Revenue and Financial 
matters, and only in rare cases was any petition made 
against him to the Emperor (MS. 370 I. O. L; Waqae 
Alamgir, p. 67). He was mainly occupied with mat- 
ters of financial policy in the state and judicial work 
from the Provinces in form of appeals seldom came 
to him. 

Raja Raghunath, the Diwan of Aurangzeb had 
the following titles: 2 

"Wazarat Panah, Kifayet Dastgah, Shaista 
Anwaa marahim wa Tafaqqudat Sazawar 
Sanuf. Awatif wa talattufat." 

II. Provinces. (Subahs). 

(i) Governor (Sttbahdar). (Mirat I, p. 208). He 
was called Nazim 3 in Bengal and Gujrat. His main 
duty was to maintain law and order. In appointing 



1 See Central Structure of the Mughal Empire, pp. 170-209. 

2 MS. 370 I. O. L. 

8 (i) Ain II, p. 37; Report of the Committee (1772-73) of 
the House of Commons, IV, pp. 324-346. (2) Mirat I, p. 321, 
Supp., p. 145. 



JUDICIAL SYSTEM UNDER THE MUGHALS 149 

Said Khan as Subahdar of the Punjab, Jahangir laid 
stress on his duty to see that justice was properly 
administered in his charge. 1 The Subahdar was 
also the Commander-in-Chief of the army within 
the Province. In matters of revenue and landed 
property maamla-e-mali khalisah sharifah 2 his work 
as a Court of Justice was particularly emphasized. 
He possessed all the judicial powers exercised by a 
Governor under the Sultans. 3 Shaistah Khan, the 
Governor of Bengal was fond of regular judicial 
work 4 and the example set up by him was kept up 
by his successors in the days of the East India Com- 
pany, 6 and Sunday was usually the Court day Roz-e- 
adalat. According to Alexander Dow, appeals from 
the Court of a Governor lay to the Emperor's Court 
by way of petition, 6 but it appears that there was 
no hindrance to their being filed in the Court of the 
Qaziul Quzat. The salary of the Governors was 
high. The Subahdar of Gujrat, for example, receiv- 
ed Rs. 2,40,000 a year and the figure was raised still 
higher in the time of Aurangzeb. 7 

When the Governor left the Subah for urgent 
reasons he could appoint the Diwan to act for him 
during his temporary absence (Mirat I, p. 375). 

1 Tuzuk, p. 6. 

2 Mirat I, p. 282. 

3 Compare Dow III (p. LIII), Storia III, pp. 263-264. 
4 Eciwardes and Garret t, p. 190. Sarkar. Aurangzeb IV, 

p. 367. 

6 Letter dated 21-8-1772, pp. 371-372, I. O. L. Range A. 
Vol. 19. 

e Compare Lanepoole's Aurangzeb, p. 113. 

7 Compare Mirat, Supp., p. 145. The Governors of the 
four major Provinces in British India do not get more than 
Rs. 1,50,000 a year including entertainment allowance. 



150 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Attached Officers, i. Mufti. 2. Darogha-e- 
Adalat. 

During the later Mughal period (1750-1857) 
the Darogha of the Governor's Court did a subs- 
tantial amount of judicial work and in Bengal became 
superior to the Qazi-e-Subah (Report of the Com- 
mittee of the House of Commons 1772-1773. Vol. 
IV, p. 324). He was empowered by the Governors, 
who had become in effect independent rulers, to 
try cases and to hear appeals presumably because the 
Governor's other duties did not give him time to 
attend to them. He tried serious criminal cases and 
took cognisance of riots and affrays and suits relating 
to landed property except claims to inheritance. 
His official title was Darogha-e-Adalatul Aliah (MS. 
Add. 9697). The change advanced enormously the 
prestige of the Daroghah till his post was abolished 
in 1820 A. D. 

(2) Qasy-e-Subah. (MS. 6580 Mirat f. 425). Mi- 
rat I, p. 334. 

The Provincial Judicial Department was under 
the Chief Provincial Qazi or Qazi-e-Subah* He 
was appointed by the Emperor. 1 He had original 
civil and criminal jurisdiction and was the Chief 
Court of Appeal in the Provinces. His judicial 
powers were co-extensive with those of the Gover- 
nor (Elliot, VII, p. 172) and he had a permanent seat 
on the Bench of the Governor's Court (Mirat I, p. 
275). Appeals came to him from the District Qazis 

1 Sir J. Sarkar thinks by the Chief Justice. The practice 
does not seem to be as Professor Sarkar says. The appoint- 
ment as a rule could be made by the Emperor. 



JUDICIAL SYSTEM UNDER THE MUGHALS 151 

(Safir-e-Oudh, p. 91) and he was consulted by the 
Governor in cases where the use of the Sovereign's 
prerogative came into question. 

He was required to administer the oath of office 
to a new Governor, to pay a formal call on him and 
to attend the receptions given to him (Mirat, II, p. 2) 
though it was not necessary for the Qazi-e-Subah 
to seek interviews from or attend 1 the Governor. 
Similar functions have still to be performed in Bri- 
tish India by the Chief Justices of Provinces, 

Attached Officers 

i. Mufti. 2. Mohtasib. 3. Darogha-e-Ada- 
lat-e-Subah. (MS. 370. I. O. L.) 4. Mir Adi. 
5. Pandit. 2 (MS. 2907 I. O. L. f. 40). 6. Sawaneh 
Nawis (MS. 6580 f. 425). 7. Waqae Nigar (MS. 
6580 f. 425). 

(3) Diwan-e-Subab 

His judicial duties were the same as were under 
the Delhi Sultans. He was appointed by Royal 
Farman 3 either directly or promoted from among the 
District Revenue officers. 4 

Appeals against his orders were usually taken 
to the Diwan-e-Ala at the Imperial Capital but they 
could be filed before the Governor as well. 



1 Compare Essays on Islam. Khuda Bux, p. iz. Mirat I, 
p. 275. 

2 Compare Mill, History of India* III, p. 369. (2) Report 
of the Committee of the House of Commons, 1772-1773, IV* 
p. 326. 

8 Mirat Supp., p. 148, also see I, pp. 208, 334. 
4 Case of Saiyad Mohsin, Mirat I, p. 334. 



152 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Officials attached to a Di watt's Court 

1. Peshkar (Secretary) Mirat Supp., p. 148. 
He was a "Mansabdar" appointed by the Emperor. 

2. Daroghah or the Superintendent of the office. 
This official like the Darogha-e-Adalat of the Gover- 
nor's Court was invested with jurisdiction to try Re- 
venue and Civil cases during the later Mughal period. 

3. Mushrif or the Treasurer. 

4. Tahvildar or the Cashier. The clerical staff 
included a Munshi (Head Clerk), Huzur Clerk, Subah 
Clerk, Clerks for crown lands and other miscellaneous 
work, Record-keeper, Accountants, and Heralds. 

III. Districts. (Sarkars). 

Qazi (Shariyat Panah. Farameen, p. 228; 
Baqiat). 

The principal judicial officer in the district, as 
was the case under the Sultans, was the Qazi, 
He was appointed by a Royal Sanad which was 
issued 1 by the Sadrus Sudur. Ranking in his transla- 
tion of Badaoni says 2 that the Qazi was under the 
Sadr and refers to Ain I (Bloch) pp. 268, 270. He 
seems to think that the issuing of a 'Sanad' made a 
Qazi subordinate to the Sadr. This was no doubt 
the practice under the Sultans but the Mughals 
separated the Sadr and the Judicial departments. 
The actual superior of the Qazi was the Qazi-e-Subah 
and the issue of Sanads by the Sadr Department was 
a mere matter of routine. 

1 Compare Mirat Supp., p. 149. 

2 Vol. I, p. 6 10. 



JUDICIAL SYSTEM UNDER THE MUGHALS I J3 

The main duties of a district Qazi were un- 
changed during the Mughal period. He remained 
in charge of the civil and criminal (judicial) adminis- 
tration 1 and heard appeals from the Courts situated 
in the country (Dow III, p. LVII). The Mughals 
transferred the "Baitulmal" (fund for religious pur- 
poses) and the department of clothing the poor in 
the districts to his charge. 2 He and the Sadr formed 
a joint Board to control these funds. The State 
Treasury in the seaports was also placed under his 
superintendence. 8 Even payments of 'madad-e- 
maash* sanctioned by the Sadrus Sudur required the 
Qazi's concurrence. 4 

These measures were the result of the Mughals* 
policy of reducing the authority and influence hither- 
to enjoyed by the Sadrus Sudur. 5 The reforms 
introduced by Akbar and Aurangzeb resulted in the 
following additional functions for the District 
Qazis: 

1. In the matter of taking cognisance of offen- 
ces his right to order enquiry with a view to prosecu- 
tion was acknowledged as co-extensive with that of 
the Police or the Mohtasibs; vide case mentioned in 
Storia, III, pp. 122-123. 

2. The Qazi became the official visitor of the 
Jails within his jurisdiction and was given power to 
inquire into cases of prisoners confined therein, to 
revise proceedings in the cases of convicted prisoners 

1 Compare Fatawa Kitab Adabul Qazi, Vol. Ill, pp. 250-375. 

2 Mirat I, p. 338. 
8 Roe, p. 142. 

4 Mirat I, p. 335. 

5 Compare Ibn Hasan, pp. 255-288. 



154 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

and to release on bail persons under trial (Mirat I, 
pp. 282-283). The successor of the District Qazi, 
the Sessions Judge in British India, still performs 
similar duties. 

3. Aurangzeb placed the District Qazi in 
charge of the collection of the Zakat and Jazyah 
taxes and he was given a separate staff for this purpose 
(Mirat, I, pp. 339, 295-299). (Khafi Khan, II, p. 606.) 

The public mosques in the districts were also 
transferred to his control. 1 

4. He was required to lead the Friday and Id 
prayers in the central mosque of the town (Collec- 
tions and Farameen) and to attend important fune- 
rals. 2 

5. The marriages of Muslims were solemnized 
before him. 3 Fryer, an English traveller in the 
time of Aurangzeb, makes an interesting suggestion 
that the practice of marrying before a Justice of the 
Peace in Europe may have been borrowed from the 
Muslims. In British India, Muslim marriages are 
still performed before the present day Qazi who 
retains the title though none of the official functions 
of the Qazis of Mughal days. 

6. The Qazis at a seaport were given the addi- 
tional work of supervising the collection of customs 
(Storia, I, p. 71; Collections). 

The selection of a District Qazi was, as a rule, 
made from among the lawyers and sometimes from 

1 The Qaziul Quzat was the person in charge (Khafi Khan 
IT, p. 606) and the District Qazi acted for him in the district. 

2 Compare Mirat 1$ p. 330. 
8 Fryer I, p. 237. 



JUDICIAL SYSTEM UNDER THE MUGHALS 155 

among those practising in the districts (vide appoint- 
ment of Qazi Qaim AH, Baqiat, p. 22). He could be 
promoted to Qazi-e-Subah or even to Chief Moh- 
tasib of the Province (MS. 217. I. O. L. f. 57). His 
salary was a grant of 'madad-e-maash' land and a 
daily cash allowance in addition. 1 (Yaumyah naqdi 
wa arazi mashroot khidmat). A Qazi could con- 
tinue in service as long as his health permitted him 
to do so or he could resign and start practice in the 
same place where he had acted as Qazi. (Dunia 
Murai vs. Qaim AH, Baqiat, p. 25). 

Aurangzeb's order of appointment usually con- 
tained the following instructions: 

"Be just, be honest, be impartial. Hold the 
trials in the presence of the parties and at 
the Court house and the seat of Government. 
Do not accept presents from the people of the 
place where you serve, nor attend entertain- 
ments given by anybody and everybody 

Know poverty (Faqr) to be your glory 
(Fakhr)." 

It may be interesting to recall here the advice 
given by the Hon'ble Sir John Thorn, Chief Justice 
of the Allahabad High Court, in 1938 to the Judicial 
Officers in the United Provinces. In the course of 
his address, Sir John said: 

"In this connection I would say it is well to 
discourage the blandishments, the courtesies 

1 Compare Br. Mus. MS. Add. 6,580, f. 425; Compare 
Mirat I, Supp., p. 149. The Farmans in the Appendix show 
that a Qazi was entitled to a fee of Re. one from the parties for 
every marriage that he performed within his jurisdiction. 

2 Translation adopted from Sarkar (1935) pp. 27-28. 



156 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

and the attentions of executive officers and 

prospective litigants and to remember that the 

highest officer of the State, the most senior 

police officer, the wealthiest citizen in the 

land, are entitled to no greater consideration 

in your court than the humblest peasant. 

Indeed, if any distinction can be justified at 

all, it must be in favour of the latter." 

The official title of the District Qazi was "Shari- 

yat Panah" (Farameen, Mirat, I, p. 406; Baqiat) and 

within the district he held the first place (kalaantar) 1 

in the Warrant of Precedence. He was expected to 

be present to receive the Emperor or the Governor 

when they came to his district. When Maharajah 

Ajit Singh, Governor of Bahadur Shah, visited one 

of his districts in Gujrat, Qazi Khairullah led the 

reception. 2 

Office Staff 

A District Qazi could be removed by the Em- 
peror. 3 

The District Qasi had a staff of ministerial offi- 
cers as given below: 4 

i. Peshkar. (Collections). 

This post had duties analogous to those of a 
modern Reader or Sarrishtahdar in some places. 
It was held sometimes by a Hindu Kayasth 6 and 
sometimes by a Muslim and curiously enough the 

1 Akbar Namah. 

2 Compare Mirat II, p. 2. 

3 Compare Dow III, pp. 334-335. 

4 Compare Dow III, p. LVII. 
6 Collections. 



JUDICIAL SYSTEM UNDER THE MUGHALS 157 

Reader in a Court in the United Provinces is usually 
either a Kayasth or a Muslim to this day. 

2. Katib 

The modern Reader's duty of recording evidence 
was then performed by the Katib who also wrote 
the judgment dictated by the Qazi. 

3. Sahebul Majlis. (Baillie, p. 766). 

He was employed to read over their depositions 
of witnesses in Court. Presumably a person other 
than the one who wrote the statements was required 
to read them over. 

4. Amin. (Ruqaat MS. Oxford; Hidayah XX 
p. 336). 

He acted as Commissioner in cases (MS. 370 
I. O. L.). 

5 . Na^ir 

He was in charge of the court buildings and the 
menial establishment. 

6. Daft art 

He looked after stationery and book-binding. 

7. Orderlies 

The Qazi had usually four to five orderlies 
attached to his Court. 1 The District Judges in 
British India are also given three to five orderlies. 

In the time of Aurangzeb some Courts in Gujrat 
allowed candidates on the "waiting list" to work 
without payment. The rdsult was that they started 
taking bribes. The matter came to the notice of the 
Chief Justice with the result that they were removed. 
(Mirat, I, p. 319). 

1 Farameen, p. 228. 



158 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

8. Mirdahas or Process Servers (Br. Mus. MS. 

I 779)- 

9. Muchalkah Nawts. He took bonds for at- 
tendance from the parties or witnesses (Collections). 

Numbers 4, 5, 6, 8 and 9 are still employed in 
District Courts in British India in the same capacity. 

Officers attached to Qa^i's Court 

1. Darogha-e-Adalat. (MS. Add. 6,599 ^ 3 8 i 
Alamgir Namah, p. 1077). 

As superintendent of the Court he may be said 
to be the predecessor of the present Munsarim em- 
ployed in the Courts in the United Provinces. The 
office was not of much attraction. Mulla Ghalib, 
in the time of Aurangzeb, was offered this post but he 
declined to accept it saying that it was a job for the 
idle (Kare bekaran ast) Mirat I, p. 371. The Dis- 
trict Qazi had the assistance of Mir Adls and in fact 
did not require any more officers. The existence 
of Daroghahs in the districts, however, continued 
(Farameen, p. 149; Mirat Supp., 154) although in the 
eastern districts the office was abolished by Aurang- 
zeb (Ms. Add. 26239 f. 42). 

A Daroghah was a Mansabdar and it was not 
necessary in his case that he should be a lawyer 
(Farameen, p. 149). 

2. Mir AdL This position of this officer, as 
Moreland has pointed out 1 , has not been clearly de- 
fined by historians. Under the Mughals we hear 
:>f him first from an order of Akbar recorded in Ain 

1 India at the Death of Akbar, p. 34. 



JUDICIAL SYSTEM UNDER THE MUGHALS 159 

I, p. 283 (Text) about rules for judicial enquiries in 
which the appointments of Qa2i and Mir Adi are 
announced. "Yakay dar pae adalat anra Qazi na- 
mand Wa deegray ba kar nishanad oora Mir Adi." 1 

Jarrett has translated 2 this " (he should appoint 

two) one to investigate whom they call Qazi, the 
other Mir Adi to carry out his finding/' Wilson 
in his glossary (p. 342) says: 

"Mir Adi was an officer of Justice, a superinten- 
dent of the courts who revised the decision of the 
Qazi and Judges, passed sentence and ordered 
punishment." 

Edwardes and Garrett consider 3 him merely 
a Justiciary appointed by the Executive authority, 
as occasion arose, to carry out the Qazi's finding. 

Dr. Beni Prasad in 'Jahangir* (p. no) suggests 
that "a Qazi investigated and a Mir Adi pronounced 
the sentence". According to the author of c Shah- 
jahan' 4 the offices of "Mir Adi" and Qazi were 
combined into one during Shahjahan's reign. Among 
contemporary writers Monserrate says 5 that Mir Adls 
took part in the decision of cases. Muhammad 
Ka7im thinks 6 that the Mir Adi's position was 
like that of a Darogha-e-Adalat when he presented 
petitions to Court. 

1 1 have incorporated the correction given in the Bib. 
Indica publication in the footnote. 

2 Vol. II, Ain, p. 41. 

8 Mughal Rule, p. 191. 

4 p. 281. 

6 p. 209, "Cases are decided by a double process before 
two Judges." 

6 Alamgir Namah, p. 1077. 



l6o ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

"Mir Adi wa Darogha-e-Adalat taayyun namuda 

ke mustagheesan wa dad khwahanra ba 

arz wala mirasanand." (He has appointed Mir 

Adi and Darogha-e-Adalat to present to him 

people who come to his Court to seek redress). 

I am of opinion that a Mir Adi possessed no 

judicial powers such as those of a Qazi. His duties 

were analogous to those of a Mufti. The Mufti 

gave his opinion on a point of law and the Mir Adi 

submitted report on fact and the case was made over 

to him by the Qazi, after the judgment was delivered 

for superintendence of proceedings in execution. He 

was in fact a sort of superior Clerk of the Court. 

During the Sultanate there was, as we have seen, 
an officer called Dadbak or Amirdad attached to the 
Court of the Qazi whose duty it was to see that all 
men summoned by the Court were present, irres- 
pective of rank, at the hearing. Sikander Lodi 
(1489-1517) raised the status of these officers and 
gave them powers to try Common Law cases with 
the title of Mir Adi. Akbar retained them in Courts 
but confined their duties to administrative matters 
which, as Edwardes and Garrett observe 1 included 
the execution of the Qazis* decrees. 

The Mir Adi does not appear in Parganahs nor 
was he to be found at all in some of the Provinces 
viz. Bengal and Gujrat where the Daroghahs probably 
carried out the duties performed elsewhere by the 
Mir Adi. The reports of the Committee of the 
House of Commons (1772-1773) make no mention 

1 Mughal Rule, p. 191. 



JUDICIAL SYSTEM UNDER THE MUGHALS l6l 

of Mir Adls and in Mir at-e-Ahmadi also we do not 
find any reference to their powers of deciding cases. 
They are mentioned in the Zawabft-e-Alamgiri and 
the Dasturs Br. Mus. MSS. Add. 6598 and 6599. 
Sir Jadunath Sarkar's description 1 of Mir Adls as 
Judges of Common Law during the reign of Aurang- 
zeb as distinct from Qazis does not seem to be quite 
accurate for there is no clear evidence of their exer- 
cising judicial powers as independent Courts. They 
certainly had no Staff or establishment of their own, 
and they were themselves officials definitely attached 
to the Qazis' Courts. The Qazis, too, were trying 
Common Law Cases during that period. No offi- 
cial manual exists which gives details of the Mir 
Adi's duties. But an executive order issued by 
Aurangzeb and mentioned in Br. Mus. MS. Addl. 
6,599 f. 38 has the following reference: 

"Mir Adi anche dafatir berasad ba waqei tahqeeq 
agar khud qata* numaind behtar wa ilia arz 
rasanand ba huzur mushakhkhas shawad. Qazi 
ke maamlat ba huzure o berasad bar adl amal 
namuda hukum bekunad." (Whatever reaches 
the offices must be thoroughly enquired into 
by Mir Adls and it would be better if they 
settled the matter themselves or they may 
submit a report to the Court. The Qazi on 
getting the Report must decide in accordance 
with justice). 

The power of "settling" the "matter" refers to 
questions of office routine and not to the decision of 

1 Anecdotes, p. 175. 



1 62 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

cases fot which Aurangzeb generally used the word 
"Fasle Qazaya" (MS. Raqaem-e-Keram K. C. C). 
Another order of Aurangzeb refers to the Mir Adi 
as an assistant to the Qazi on the same footing as a 
Mufti. 

"ba ittifaq-e-Qazi wa Mufti \va Mir Adi bar 
\vafq millat shariyat gharra ba qata' wa fasl 
rasanad." (Mirat, I, p. 257). (The case should 
be decided with the help of the Qazi, the Muf- 
ti and the Mir Adi in accordance with Law). 
Mir Adls were not required to be "lawyers of 
reputation" like the Qazis and w r ere men of practical 
ability entrusted with the duty of carrying out the 
findings of the Qazi (Ain II, Jarrett, p. 41), Shaikh 
Ahmad of Lahore who was only a Superintendent 
in Emperor Jahangir's household was selected as 
Mir Adi in 1608 A. D. (Tuzuk, p. 28). 

One Mir Adi in Arzdasht (MS. Add. 16,859 Br. 
Mus.) refers to a civil suit between three Hindus 
which was sent to him for enquiry by the Emperor 
Shahjahan and he prepared his report and sent it to 
the Emperor. 

"Le haza tarfaen ra dar Huzur rawana kar danee- 

dah yaqin ke dar Adalat ul Aliah ruju shudah 

moamlah khud faisal khwahand dad". 42 

(a) and (b). (The parties have been directed 

to proceed to the Royal Court. As the 

original suit was filed there it is hoped that 

His Majesty will decide it himself). 

There is no mention of a Mir Adi having judicial 

authority either in any of the earlier treatises on 

Muslim Law or in any account of the Abbaside ad- 



JUDICIAL SYSTEM UNDER THE MUGHALS 163 

ministration. All mention of Mir Adls ceases dur- 
ing the reigns of Bahadur Shah (1707-1712) and his 
successors. (1712-1857). Nyamat Khan Aali, the his- 
torian, of the period, does not refer to them and appa- 
rently their position was taken by the Daroghahs. 
(Bahadur Shah Namah MS. K.C.C.). 

3. Mufti. Appointed by a Royal Sanad (Fara- 
meen, p. 93). 

4. Pandit or Shastri. (MS. 2907. I. O. L.). 

5. Mohtasib-e-Baldah. (Farameen, p. i55)(MS. 
6580 f, 425). 

Mohtasibs were appointed in all districts by the 
order of Aurangzeb, to enforce morality (Mirat I, 
pp. 249-250; supp., p. 149). Their "departmental 
chief was the Sadr. 

6. Vakil-e-Sbarai. (MS. 6580 f. 425). 

For the first time in the reign of Aurangzeb 
suits against the State were defended by Lawyers 
appointed wholetime in every district and known as 
Vakil-e-Sarkar, Vakil-e-Shara' (Khafi Khan II, 
pp. 249-252). They were attached to the Court of the 
District Qazis and received a fee of Rupee one daily. 
(Mirat Supp., p. 149). 

These Vakils were further directed to give legal 
advice to the poor free of charge. The appointment 
was made by the Chief Qazi of the Province or some- 
times by the Qaziul Quzat and their dutks according 
to a letter of appointment given in Farameen, p. 152 
were: 

1. To conduct suits on behalf of State. 

2. To get decrees obtained by the State 
executed. 



164 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

3, To act as legal advisers for the properties 
held in Trust by the Qazis. 

Prosecutions in Criminal Courts were conducted 
by Mohtasibs and the Police. 

Officers not belonging to judicial Department 

i. Sadr. The Ecclesiastical Department in the 
district was in the charge of a Sadr appointed by the 
Sadrus Sudur. Seddon in Mirat-e-Ahmadi Supple- 
ment (p. 149) translates Sadr as District Judge and 
enumerates his duties as given below: 

1. Checking the 'Sanads' of Qazis, Mohtasibs, 
Khatibs, Imams, Muezzins and Mutawallis. 

2. Issuing "parwanahs" for the stipends and 
daily allowances of officials and members of 
Ulema in the City and other towns. 

3. Passing bills for payment to charitable en- 
dowments. 

Since he had no jurisdiction to try ordinary civil 
or criminal cases, the word District Judge hardly 
applies to him. His judicial duties w^ere limited to 
the settlement of claims relating to madad-e-maash 
grants or to sitting on a Bench with the District Qazi 
to try a Canon Law case. The post was not well 
paid and sometimes a Sadr of one district was made 
Sadr of another perhaps as a measure of economy 
(Farameen, p. 51). 

2. Faujdar. (Br. Mus, MS. Or. 1779; Ain II, 
Jarrett, pp. 40-41; Storia, II, pp. 450-451. Mirat 
Supp., p. 145). 

His judicial functions, for example trying petty 
offences and taking "security" proceedings, were the 



JUDICIAL SYSTEM UNDER THE MUGHALS 165 

same as those of a Faujdar under the Sultans (MS. 
6580 f. in b). In the early Mughal period he was 
frequently transferred from one district to another 
and was sometimes sent away from his charge to 
conduct military operations (Khafi Khan I, p. 505). 
Under the later Mughals his judicial powers in cri- 
minal matters were enhanced 1 and like the Magis- 
trates empowered under Section 30, Criminal Proce- 
dure Code in British India he could try all offences 
not punishable with death. 

3. KotwaL (Storia I, pp. 197-198, II, pp. 420-421). 

Manrique 2 and other European travellers have 
described a Kotwal as a 'City Magistrate'. It is not 
clear what exactly his judicial powers were. Wher- 
ever he was stationed a Qazi was invariably posted. 
It follows, therefore, that cases of a serious nature 
could not be filed in a KotwaFs Court. From the 
proceedings in State vs. Kotwal Said, Storia I, p. 197, 
it appears that a Kotwal had powers to try cases. In 
State vs. Manrique and others 3 (Kotwal's Court) two 
of the accused were convicted of a breach of customs 
regulations and were sentenced to whipping and in 
addition were awarded imprisonment for one month in 
each case. This shows that the Kotwal had jurisdiction 
to try minor offences. Manucci, a contemporary Eu- 
ropean traveller who had personal experience of Kot- 
wals in those days says 4 that he was subordinate to the 
District Qazi and Colonel Dow in his Enquiry sug- 

1 Letter dated 21-8-1772, Vol. 19, I. O. L. Range A, pp. 

37 I -37 2 - 

Vol. I, p. 418. 

8 Vol. II, pp. 137-138. 

4 Vol. II, p. 421. 



1 66 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

gests 1 that a judicial order passed by a Kotwal was 
; appealable to a District Qazi. 

4. Amalgu^ar. Am II, Jarrett, p. 43; Collec- 
tions. 

He was the Amil of the Sultanate period and 
decided rent and revenue cases in which capacity 
he was the predecessor of the present day Collectors 
in British India. A Darogha-e-Kachehri was at- 
tached to his Court (Or. 1779). 

5. Waqae Nigar (Ms. Add. 6580 f. 425). 
Waqae Nigars, Waqae Nawis or Akhbar Nawis 

recorded proceedings of the above Courts daily and 
sent them on to the Emperor (Collections; Mirat 
Supp., p. 150; Storia II, p. 421). The latter was in 
this manner able to supervise the work done by his 
officers. These reports were scrutinised by the 
Qaziul Quzat or the Qazi-e-Subah. 

Subdivisions. (Parganahs) . 

Qa^i-e-farganah. (Mirat I, p. 327; Farameen 



PP- 

The Qazi-e-Parganah was the principal officer 
in the Parganah. He was appointed by a Royal 
Sanad and his jurisdiction extended over the villages 
included in his Parganah. He had all the powers 
of a District Qazi except that he could not hear 
appeals as there was no Court inferior to his. Canon 
Law Cases were, as a rule, not taken before the Par- 
ganah Qazi but before the higher Courts. 

The salary of a Qazi-e-Parganah was not high. 

i Vol. in, p. LVII. 



JUDICIAL SYSTEM UNDER THE MUGHALS 167 

He received madad-e-maash land from the Sadrus 
Sudur and some small allowance (Mirat Supp., p. 149). 
All Muhammad Khan says that Qazi Muhammad 
Shafi of Parganah Meerut was given a special allow- 
ance as he was unable to support his family on what 
he had received before. (Mirat I, p. 327). 

Officers attached to Qa^i's Court 

1. Mufti 

2. Mohtasib-e-Parganah (Mirat I, p. 329, 249- 
250. Farameen), p. 155, who had a staff of a few 
Mansabdars and also infantry men. 

Sometimes the Mufti of a Parganah was appoint- 
ed Mohtasib as well in addition to his own duties 
(Baqiat). 

3 . Darogha-e-Adalat 

The Parganah Courts had a Darogha where 
necessary (Farameen, p. 148 and Appendix D. 2). 

4. Vakil-e-Shara* (Khafi Khan II, p. 249) who 
had a staff of 3 clerks and one accountant (Mirat 
p. 149 supp). Sometimes the Vakils w r ere appointed 
Qazis (Farameen. Appointment of Rasaullah). 

Other Courts 

i. Faujdar-e-Parganah. (Br. Mus. MS. Or. 



Faujdars were sometimes posted to a Parganah 
or group of Parganah s and exercised the same powers 
as those of the district Faujdar. In a few districts 
Amins or Revenue officers were appointed Faujdars 
(Or. 1779) in addition, while in some places there 
were no Faujdars at all and their duties were perform- 



1 68 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

ed by Shiqahdats or Kotwals. (Mirat I, p. 342), or 
Zamindars (Farman, Appendix D. 4), 

2. Honorary Courts 

The local landlords were sometimes appointed 
in the Parganahs to try Common Law Cases (Baqiat 
p. 6, Farman). Such appointments were notified to 
the Public. Appeals from their Courts were taken 
to the District Qazi's court. (Dow III, p. LVII). 

3. (i) Karon. 

(2) Amin-e-farganah. 

Revenue cases in the Parganah were decided by 
Karori and Amin whose powers may be compared 
with those of Assistant Collectors, or Assistant 
Commissioners under the Land Revenue Act in 
modern Indian districts. The exact distinction in 
their jurisdictions is not known. 

All the officers mentioned above except the 
Qazis were required (MS. Or, 1779) to ^g* 1 a cove ~ 
nant for the proper discharge of duties more or less 
on the lines of the covenants executed by the candi- 
dates selected for the Indian Civil Service before their 
appointment. 

Villages 

(D'ehat a word still in use in British India). 

i. The Panchayet 

The administration of justice in the villages 
was, as was the tradition from ancient times, left in 
the hands of village councils (Panchayet). 1 Their 

1 Compare Sir Charles Metcalfe in the Report of the Select 
Committee of the House of Commons, Vol. Ill, App. 84, p. 331. 
"The village communities are little republics having nearly 



JUDICIAL SYSTEM UNDER THE MUGHALS 169 

powers in all matters civil and criminal were the re- 
sult of old customs and administration went along 
these lines. 

The Panchayet held its sittings in a public place 
and administered justice in the village so far as 
punishing small offences and deciding petty civil dis- 
putes were concerned. The decision of the Pancha- 
yet was binding and in most cases no appeal was 
filed. The decrees were generally executed. 1 

2. The Headman 

The headman or the Chaudhri was usually the 
President of the Panchayet and as Dow says a "unit 
of judicial administration" (Vol. Ill, p. LVIII) 
head of the lowest tribunal recognised by Law. 

The Farman 2 dated Shaban 29. 1117 A. H. dec- 
lares that he was to maintain peace and tranquillity 
in the village and thus he occupied a position similar 
to that of a Justice of the Peace in England. 

In the East the Chaudhri was called the Moqad- 
dam, in the West the Patel and in the South the 
Chetty. 

3. Zamindar. (Farameen) Or. MS. 2011. 

In some places influential landlords were ap- 
pointed to maintain order in local areas. 3 During 
the later Mughal period they were invested with 
powers to try civil and criminal cases of petty nature. 



everything they want within themselves and almost indepen- 
dent of any foreign relations. They seem to last where no- 
thing lasts. Dynasty after dynasty tumbles down; revolution 
succeeds revolution." 

1 Compare Maine, Village Communities, pp. 121-123. 

2 Farameen. 

8 See Appendix. 



170 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

4. Grades of Courts 

From the above analysis of the duties and func- 
tions of the various officers of the department of 
Justice (Mahakma-e-Adalat) it seems that the powers 
of the Courts varied distinctly during the later Mu- 
ghal period. It is, therefore, convenient to divide 
the Mughal period into two parts namely 

(1) 1526-1750. 

(2) 1751-1857. 

In the first period the following gradation of 
Courts existed throughout 1 the Mughal Empire: 

I. Villages. (De'hat). 

Trial Court Powers Presiding Officer 

The Panchayet Petty Criminal The Headman usu- 
ally the Chaudhri. 
(Vide Farman Ap- 
pendix). 

(Compare Dow HI 
p. LVIII). 

Appeals, if any, to the District Qazi. (Dow) 

II. Town. (Parganah). 

i. Original, Civil All Common and Qazi-e-Parganah. 
and Criminal Civil Law Cases. 2 (Dow III, p. LVII). 
Court. (Ad- 
a late -Parga- 
nah). 

Appeals to the District Qazi. 

1 Compare Sarkar. "All the 20 Indian (Provinces) of the 
Mughal Empire were governed by means of exactly the same 
administrative machinery with exactly the same procedure and 
official titles." Mughal Administration (1935) p. 239. 

2 He had powers to try Canon Law cases but none seems to 
have been tried by a Parganah Qazi. The Mohtasib had liberty 
to prosecute the accused in any Court within the District. 



JUDICIAL SYSTEM UNDER THE MUGHALS IJI 

Trial Court Powers Presiding Officer 

z. Kotwali. Modern Police Kotwal-e-Parganah. 

Act Cases. 

Appeals to the District Qazi. 

3, Kachehri, Revenue Cases. Amin. 

Amin Kar- 
kuns(DowIII 
p. LV. Ain II 
p. 46.) Later 
on Qanungoe. 

Appeals to the District Amalguzar. 
Karoris were Revenue Officers posted in Mahals 
(Or. 1779). 

III. District. (Sarkar). 

1. The Chief All Civil, Canon Qazi-e-Sarkar. 
Civil and and Criminal Law 
Criminal cases. Appeals 

Court of the (DowIII,p.LVII). 
District. 

Appeals lay to Qazi-e-Subah. (Elliot VII, pp. 
172-173. 

2. Riot, Security Cases corresponding The Faujdar. 
Cases. (Faujdari with those under 

Adalat). Sections 107, 109 

and no Indian Cr. 
P. C. Affray and Po- 
lice Act Cases. 

Appeal lay to the Governor's Court. 

3. Kotwali. Modern Police Act Kotwal-e-Shaher. 

Cases. 

Appeals to the District Qazi. (Mirat I, p. 283; 
Dow III, p. LVII). 

4. Amalguzari Ka- Revenue Cases. Ap- Amalgusar. 
chehri. peals from Town 

Karoris. 

Appeals to the Provincial Diwan. 



172 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 



IV. The Provinces 
Trial Court 

i. (a) The Gover- 
nor's Bench. Ada- 
lat-e - Nazim-e-Su- 
bah. 

(b) The Gover- 
nor's own Court. 



(Subahs). 
"Powers 

Original Appellate. 
Re visional. 



Original. 



Presiding Officer 

The Governor. 
(Nazim-e-Subah). 



The Governor. 
(Nazim-e-Subah) . 

Appeals lay to the (i) Emperor's Court (2) Chief 
Justice's Court (Elliot VII, p. 173) by way of petition 
as is done in Appeals to the Privy Council (Compare 
Dow III, p. XXXIII). 



2. The Chief Appel- 
late Court. 



Original Appellate 
Canon Law Gases. 



Qazi-e-Subah. 

Appeals lay to (i) the Governor's Bench (2) 
Qaziul Quzat. 

Appellate Original. The Diwan. 



The Chief Reve- 
nue Court. 



V. 



Appeals lay to the Imperial Diwan. 
The Imperial Capital. 



1. Emperor's Court. 

2. The Supreme 
Court. 

(a) Emperor's 
Bench. (Diwan-e- 
Mazalim of Au- 
rangzeb's reign). 
(Compare, Abba- 
side Diwanun 
Nazar fil Mazalim, 
Ameer Ali, Sara- 
cen, p. 422. 

(*) The Chief 
Court of the Em- 
pire. 



Original with Muf- Emperor, 
tis. Appellate. 



Original. 

Appellate. 

Revisional. 



No. Appeal lay. 

Original Appellate 
Revisional Canon 
Law. 



Emperor. 



Qaziul Quzat. 



No appeal lay but petition in Revision could be 
moved in the Emperor's Court or his inherent 
powers could be invoked. 



JUDICIAL SYSTEM UNDER THE MUGHALS 173 



Trial Court 



Powers 



Presiding Officer 
Diwan-e-Ala. 



3. The Chief Reve- Appellate, 
nue Court. No Appeal 

lay. 

In Revisional matters application could be 
moved in the Emperor's Court or the Emperor 
could take action, suo motu, vide case reported in 
MS. 370 I. O. L. 

iMter Mughals (1750-1857). 

The Provinces assumed independence and the 
Executive officers started trying the cases them- 
selves. The following grades of Courts worked in 
Bihar and Bengal. (Letter dated 21-8-1772. Range 
A. Vol. 19. Home Misc. 529 I. O. L.). 

i. DISTRICT 
A. Criminal Courts 

1. Faujdar: tried Criminal and Common Appeal to Nazim- 

Law Cases. e-Subah. 

2. Zemindar: tried Criminal and Common Appeal to Nazim- 

Law Cases. (Mostly petty e-Subah. 
cases in a * summary' man- 
ner). 

3. Qazi: enquired into Murder Cases Appeal to Nazim- 

only and submitted report e-Subah. 
to Nazim-e-Subah. 

4. Kotwal: Petty Criminal Cases. 

jB. Civil Courts 

i. Qazi: heard claims of inheritance Appeal to Nazim. 

and transfer of property 
cases. 



2. 



Zemindar: All Civil and Common pleas Appeal to Nazim. 
except those mentioned 
above B. (i). 

3. Qanungoe: Revenue Cases. 



174 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

2. PROVINCIAL HEAD QUARTERS 

A. Nazim-e-Subah. 

(1) Murder Cases. 

(2) Appeals from District Courts. 

(3) Applications in Revision. No Appeal 

lay. 

(4) References from District Courts viz. 

difference of opinion between Qazi and 
Mufti. 

B. Darogha-e-Adalat Diwani. 

Heard all civil suits and appeals including 
those relating to Real Property and Land. 

C. Diwan. 

Inherent power to hear all Revenue Cases. 

D. Darogha-e-Adalat Aliah. 

Disposed of all Revenue work on behalf of 
the Diwan. 

No cases went to the Emperor as the Governor 
(Na2im) became, in practice, the final authority. 

As noticed in the seventh report of the Com- 
mittee of Secrecy of the House of Commons, 1773 
p. 324, the Common Law Courts in Bengal during 
the later Mughal period did not try offences involving 
capital punishment, but their jurisdiction extended 
to criminal cases of other kinds. The presiding offi- 
cers of those Courts were the Faujdars and the Ze- 
mindars who were also the executive officers within 
their respective areas. The Qazis were left to try 
murder offences and the civil suits. In criminal 
cases their orders could not be carried out without 
the sanction of the Nazim. 



JUDICIAL SYSTEM UNDER THE MUGHALS 175 

Murder Cases were sent direct to the Court of 
the Qasis by the Police, or if started on a private 
complaint, the hearing commenced without the 
case being "committed for trial" by a subordinate 
Court. 



12 



CHAPTER V 
PROCEDURE IN COURTS 

Jurisdiction. (Kitabul Qa^a Fiqh, Adabul Qa^i^ Fata- 
wa, Vol. Ill) 

Qazis, to whatever offices appointed, \vere en- 
joined to be watchful of their jurisdiction and were 
not to exceed it (Fiqh-e-Firoz Shahi). They could 
try only those classes of cases which were specified 
in their letter of appointment (Fatawa Vol. III. Ada- 
bul Qazi). The King, the Qaziul Quzat, the Subah- 
dar within the Subah and the Qazi-e-Subah within 
his charge alone had inherent jurisdiction in civil 
and criminal cases corresponding to the powers 
vested in the modern Indian High Courts (U. S. 561 
Cr. P. C. and S. 115 C. P. C.) 

The Qazis could not decide suits in which they 
were personally interested 1 (Fatawa) but they could 
be appointed in their home districts, 2 vide letters of 
appointment in the Appendix. Emphasis was laid 
on the trial of cases *on the spot if possible. 3 So 
strong has been this tradition that to this day we 
often find an Indian litigant pressing the Court to 
inspect the spot or to hold the trial in his village. 
A Qazi was not debarred from trying a criminal case 

1 Compare S. 556, Cr. P. C. in Br. India. 

2 Compare Ain. Text I, p. 283. "Az hal o Ja agah". 
8 Compare Elliot VII, p. 172. 



PROCEDURE IN COURTS 177 

because he was himself an eye witness, but the Fata- 
wa-e-Alamgiri states that if a Qazi was proved to have 
taken a bribe and thus become an interested party, his 
judgment was null and void as an illegality. If a 
Plaintiff resided in the cantonment area and the 
Defendant in the civil, a Qazi-e-Askar had to be 
empowered to try that case, or the Qazi of the civil 
area could settle the dispute without being so em- 
powered (zira ke vilayet o am ast). 1 

The powers of the Appellate Courts and their 
jurisdiction in Revisional matters were not defined. 
The principle underlying the system as followed by 
the Sultans and adopted by the Mughal Emperors 
was that a decision of a lower Court could be chal- 
lenged in a higher court and the political divisions 
of the State determined the status of the Courts. 
From the nature of their office the King and the 
Qaziul Quzat possessed jurisdiction to try cases all 
over the Empire, vide State vs. Faiz Sherwani, 
(Briggs I, p. 253, State vs. Seif Ala, Dow III, p. 105, 
State vs. Haibat Khan, Briggs I, p. 253.) Also refer 
to Elliot VII, p. 173 and Kennedy II, p. 39. 

Constitution of Courts 

In the normal course of business there was only 
one presiding officer in a regularly constituted Law 
Court. The letters of appointment issued to the 
Qazis show their duty of deciding cases (Fasl-e-Qaza- 
ya) without sharing it with anyone (bila shirkat-e- 
ghairay). The announcement made was that people 

1 Compare Ibn Hasan, p. 312. 



178 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

should consider him the 'sole Judge' of their disputes 
(degray ra sahim o sharik-e-o na danand) 1 . The 
Muftis, Mir Adls or the Dadbaks, as I have shown 
above, did not possess Qazis' powers, although 
the opinion given by the Mufti on a law point could 
not be ignored by the Qazi and in a case of difference, 
reference to a higher Court was necessary. 2 

Canon Law cases, however, were tried by Ben- 
ches. (Elliot V, p. 543; Stewart, p. 410; Mirat-Supp. 
pp. 45-46, Sarkar, Aurangzeb III, p. 113; Elliot IV, 
p. 464. State vs. Chabila Ram, Aurangzeb I, p. 174 
(Sarkar); State vs. Sidi Maula, Badaoni I, p. 171. At 
the Provincial and the Imperial capitals 3 appeals 
were sometimes heard by Benches vide Safir-e-Oudh, 
p. 5 and State vs. Budhan, Beveridge I, pp. 101-102. 
There was no illegality 4 in the appointment of two 
judges, as happened in State vs. Yusuf, Briggs IV, 
p. 518, to hold a trial, but regular cases in the first 
instance including murder offences 5 were tried by a 
single Judge only. In Canon Law cases the Sadr of 
the place was usually the other member of the Bench. 6 
The tradition of the early Caliphs of Islam was to 
refer intricate questions of law or of fact arising in 

1 See the letters of appointment issued to (i) Qazi Raza- 
ullah (Appendix), (2) Qazi Niamatullah (Baqiat), (3) Qazi Nasir 
Uddin (Baqiat). 

2 Compare Case. Safir-e-Oudh, pp. 5-6. E. I. Co. Letter 
dated 15-8-1772 and the Report of the Committee of the House 
of Commons. Records I. O. L. Vol. IV. pp. 324-346. 

8 Compare Order of Aurangzeb, Mirat I, p. 275. 
4 Compare Mawardi J. R. A. S. 1910, p. 771. 
6 Khafi Khan II, pp. 257-258. State vs. Mirza Beg; State 
vs. Prince, Mirat I, p. 49. State vs. Haibat Khan, Briggs I, p. 

253- 

6 Vide Cases mentioned above. 



PROCEDURE IN COURTS 179 

any case to the Ulema (Lawyers) and decide those 
points in accordance with the opinion of the majority. 
The Sultanate and the Mughal Courts adhered to the 
essentials of this practice and sometimes referred 
issues ad hoc to the Ulema for opinion, vide State vs. 
Sidi Maula, Barni, p. 211; State vs. Yusuf, Briggs 
IV, p. 517; Ausaf Ali's case, Baqiat, p. 28. State vs. 
Laudhan, Elliot IV, p. 464. No precise rules re- 
garding Benches were framed (Al Qaza fil Islam, p. 
87) as is now the practice in modern Indian High 
Courts. 

In matters concerning possession of land, how- 
ever, where a breach of the peace w r as apprehended, 
jurisdiction seems to have been conferred both on 
the Qazi and on the chief executive officer of the place 
to determine the claim. The case, All Raza and 
Afzal Ali vs. Mir Muhammad Wali relating to dis- 
possession from land (Baqiat, p. 18) was tried by a 
Faujdar and a Qazi. Similarly Muhammad Wali's 
claim to possession of a jungle (Dhak) against Mu- 
hammad Shahid, (Baqiat, p. 23), was heard by a Qazi 
and a Daroghah and the suit for dispossession from a 
grove between Bahar and Abi Muhammad (Baqiat, 
p. 12) was decided by the Qazi and the Thanadar of 
the Qasbah. It is not clear to w T hich Court the Ap- 
peals from these orders were taken, but at all events 
such orders came under the inherent powders of the 
Governor or the Qazi-e-Subah. 

It may be interesting to note here that the pro- 
cedure adopted in such cases in Modern India is to 
split such disputes into two parts. The sub-divi- 
sional or Parganah Magistrate sitting singly decides 



1 80 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

U. S. 145 Cr. P. C. which patty is in immediate pos- 
session and then the other patty, if not satisfied with 
the Magistrate's decision, may file a suit in the Civil 
Court to establish his claim to ownership. 

Transfer of Cases 

The power of ttansfetting cases from one Coutt 
to another appears to have been vested in the King 
and the Governor only. Akbar used to withdraw 
original civil suits from the Qazis 1 and Shahjahan 
transfetted the case of a Hindu clerk to his own Court 
(Storia I, p. 203). The Governor of Carnatic trans- 
ferred the case Manucci vs. The Portuguese, to an 
English Magistrate in the East India Settlement 
(Storia III, p. 128). A matrimonial case on the file of 
the Qazi of Parenda was transferred to that of a 
neighbouring Qazi by the Governor of Parenda 
(Collections). It is not clear if the Qazi of a Sarkar, 
like the modern District Judge in India, had power 
to transfer cases from the Court of one Qasbah 
to that of another within his own territorial juris- 
diction. 

Any case could be withdrawn from any Court 
by the Plaintiff or Complainant and taken to the 
highest tribunal more or less on the grounds that 
are now pressed when applications for transfer are 
moved. Aurangzeb transferred a civil suit to his 
own Court suo motu (Waqae, pp. 32-35). 

The Qazis of Qasbahs and Parganahs were sub- 
ordinate to the District Qazis only in so far as Appeals 

1 Compare Smith. Akbar, p. 345. Eclwardes and Garrett, 



PROCEDURE IN COURTS l8l 

against their judgments lay to the latter more or 
less like the Magistrates of the first class in British 
India being subordinate to the Sessions Judge. They 
had, like the present Civil Courts, administrative 
power over their Staff, but the Qazi-e-Subah was 
empowered to issue orders to them on judicial and 
administrative matters. 

Procedure in Civil Cases 

(Kitab ud daVa, Fiqh-e-Firoz Shahi). 
The following procedure as prescribed in Fata- 
wa-e-Alamgiri was observed: 

The Plaintiff had to file his claim at the sitting of 
the Judge (Vol. IV, p. i). An agent duly authorised 
could file it. If the case was in order and not palp- 
ably absurd (IV, p. 87) the opposite party or whom- 
soever the Court thought interested in the suit, was 
summoned. The Defendant was then required to 
admit or deny the claim (IV, pp. 84-87). 

If the Defendant denied the Plaintiff's claim, 
issues were framed and the Plaintiff was required to 
produce his evidence. If the Plaintiff pressed that 
the Defendant should take an oath and the latter dec- 
lined, the Plaintiff could get a decree or the refusal 
by the Plaintiff to take the oath when required by 
the Defendant could result in the summary dismissal 
of the claim, vide Nusrat Ali vs. Qaim Ali (Baqiat, 
p. 21.) 

If the Plaintiff produced evidence, the Defendant 
was given an opportunity to bring evidence in re- 
buttal. New issues could be framed and fresh evid- 



1 82 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

ence admitted if the Court thought it necessary. 1 

Judgment was to be delivered after the whole 
evidence had been properly weighed. 

Absence of Defendant 

According to Hidayah a decree could not be 
passed against an absentee Defendant unless his re- 
presentative was present. Imam Nawawi 2 thinks 
that the Court could send the record and evidence 
to the Qazi where the Defendant resided for his 
statement, and on getting the record back decide the 
issues. 

Abatement of Suit 

If the Plaintiff died, the suit abated, vide Har- 
kishen vs. Ram Rai Aurangzeb's Court (Sarkar, 
Aurangzeb III, p. 353). 

Proceedings in Criminal Cases 

The procedure in criminal cases was simpler. 
There was no system of 'commitment for trial' and 
the Criminal Courts followed a uniform practice. 
The complaint was to be presented to Court person- 
ally, or through a representative. Government pro- 
secutions were instituted by Mohtasibs (Badaoni I, 
p. 187) or Kotwals. The Court had power to call 
the accused at once or it could insist upon hearing 
the Complainant's evidence before summoning him, 
vide Complaints of Sir Thomas Roe against Zulfiqar 

1 Vide (i) Beveridge I, p. 102. (2) Storia III, p. 264. (3) 
Stork I, pp. 199-200. 
2 Minhaj f p. 509. 



PROCEDURE IN COURTS 183 

Khan (Roe, pp. 141-142) and Asaf Khan (Roe, pp. 
424-425). 

In petty cases no record was kept except a note 
in a Register (Musajjilat). The sentence was pro- 
nounced in open court. 

Absence of Parties 

Evidence could be heard 1 in the absence of an 
absconding accused, but prosecution witnesses were 
to be recalled when he was arrested and his trial com- 
menced. (Kitabul Ikhtyar MS. Add. 22714 f. 35). 
(Kitabul Mafqud, Fiqh-e-Firoz Shahi). 

If the complainant was absent the accused was 
to be released. In State vs. Sulaiman and Others 
(Collections) a murder case, the heirs of the deceased 
did not appear to prosecute the case and the accused 
were discharged. This can only happen in British 
India if the alleged offence is punishable with not 
more than six months' imprisonment. No judg- 
ment could be pronounced in the absence of both 
the parties or their Counsel 2 (Vakil). 

Prosecution 

In offences against religion Mohtasibs or the 
Censors of morals were the Prosecutors 3 (Badaoni 
I, p. 187). In other State prosecutions the Kotwal 
had this duty or the Faujdar in places where there was 
a Faujdar but no Kotwal. Shiqahdars also could 

1 Compare S. 512, Cr. P. C. 

2 Fatawa III. Kitab Adabul Qazi, Luck. Ed. pp. 519-520. 

3 Sarkar (1935) p. 30. 



1 84 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

report to the Qazis for cognisance of cases in Par- 
ganahs (Collections). 

"Personal 'Enquiry by Court 

Courts were not debarred from making extra- 
judicial enquiries whether direct or through an agent- 
Muzakki. Such enquiries were encouraged by some 
Kings 1 , vide Saiyad vs. Mian Malik, (Elliot IV, p. 
454; Ain II, pp. 37, 41; Waqae, p. 88. 

Jahangir, when trying the case of Moqarrab 
Khan, postponed the trial in order to make a "per- 
sonal" enquiry. 2 

Alexander Dow, in his Enquiry, writes as follows 
about methods employed by Jahangir to get infor- 
mation : 

"Jehangi* boasted of his humanity as well as 
of his justice... Though he was often furious and 
distant among his domestics he was fond of throwing 
off the character of the Emperor, of enjoying freely 
the conversation of his Subjects. "He often dis- 
appeared in the evening from the Palace and dived 
into obscure punch-houses, to pass some hours in 
drinking and talking with the lower sort. He had 
no enemies, and he was under no apprehensions 
concerning the safety of his person." 

He was able to get first-hand information in 
making up his mind, "the people loved his familiar 
openness and did not by rudeness abuse the trust 
reposed in them by their Prince." (Vol. Ill, p. 102). 

The practice seems to have been started by the 

1 Ain I, p. LIII (Blochman). 
2 Tuzuk, p. 83. 



PROCEDURE IN COURTS 185 

Abbaside Caliphs (J. R. A. S. 1910, p. 794) and was 
followed by the Sultans and the Mughal Rulers. 

In some cases enquiries were made through 
others (See i. Collections. 2. Tuzuk, Wahab's 
Case, p. 306). 

Judgment 

The final judgment of the Court was recorded 
in a book of judgments Kitabul Hakam. 1 So far 
as I have been able to discover no copy of such book 
is now extant. A Judgment was not signed by the 
presiding officer, though an impression of his seal 
was put on the top. 2 

The seals of the Mughal Emperors were kept in 
their Harems 3 usually with the most trusted lady. 
The finding on an Inquest had to have the Qazi's 
seal and his certificate that there was no "foul play". 4 

Judgment was pronounced in open Court 5 
unless the delinquent, in a criminal proceeding, was 
considered so dangerously influential that a public 
trial was against the interest of the State. 6 The 
Courts were enjoined to write their judgments "care- 
fully so that the learned men might not pick holes 
in them" and "bring the Courts into shame". 7 Mon- 
serrate in his Commentary (pp. 210-211) says that 
judgments were delivered "only verbally" and "not 

1 Ibn Hasan, p. 312. 

2 Vide judgments in Baqiat. 

3 Compare Monserrat % p. 209. Ibn Hasan, p. 101. 

4 Compare Ameer Ali Islamic Culture 1927, p. 348. Elliot 
IV, p. 18. 

6 Compare Manrique II, p. 189. 

8 Compare Dow III, pp. xxx and xxxi. 

7 Compare Sarkar, 1935, p. 28. 



1 86 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

recorded". He is presumably speaking of Akbar's 
reign, but it seems that since the Ain-e-Akbari itself 
required the Courts to maintain a careful record and 
sentences of death were to be submitted to King 
for confirmation there must have been some record 
of judgments kept. Decrees in civil disputes were 
prepared in accordance with the judgments on a 
prescribed form. 1 

Sentence 

The Qazis, like the present District and Ses- 
sions Judge in India, could try any suit and pass 
any sentence in a criminal case. If the sentence was 
of death it was under the Mughal Emperors to be 
submitted for confirmation to the King or the Gover- 
nor. 2 In British India the law still requires a Ses- 
sions Judge's death sentence to be confirmed by the 
High Court. 

Records of Cases. (Fatawa, Vol. VI, pp. 249-371) 

Records of cases were not to be destroyed and 
they were to be available if requisitions were made 
by other Courts, vide order of Aurangzeb in Azmat 
Ullah vs. Ghulam Muhammad (Baqiat, p. 5, also p. 4. 
See also Safir-e-Oudh, p. 6.) Aurangzeb, in remand- 
ing a case for further enquiry, not only gave direc- 
tions to the Court but pointed out rules of procedure 
which had not been observed (Collections). In 

1 Compare Fatawa (Baillie), pp. 763-769. For fuller dis- 
cussion see later. 

2 Vide Storia III, p. 264, II, p. 419. Thevenot III, Ch. X, 
p. 19; Compare Khafi Khan II, p. 550. Dow III, p. LVIII. 



PROCEDURE IN COURTS 187 

another bail appeal Aurangzeb found the reasoning 
of the lower Court defective "bewajeh Sharai" (See 
Kalimat ut Tayyebat, MS. K. C. C.) Manrique in his 
Travels, Vol. II, p. 160 gives the following note: 

"Facing the Tribunal stands a fine palace in 
which the Principal Nabobo resides. He pro- 
mulgates all favours, decrees and privileges made 
by that Majesty, their copies being kept in the 
archives at this place." 

Apart from these instances there are other in- 
dications that there was a Law of Procedure which 
required the whole proceedings, including a repeti- 
tion of the plaint Mahzar, to be recorded in a 'Sijil'. 1 
It also appears from Hidayah (p. 336) that the Qazi 
was required to keep his records and papers carefully 
and hand them over to his successor. Aurangzeb, 
after reviewing a judgment, issued a circular (Collec- 
tions) that all decrees, sale deeds, mortgage bonds 
and other legal documents should be carefully written 
and quoted. 

Copies 

Evidence is to be found of the issue to parties 
of copies of decrees and of papers on the record. 2 

1 See Fatawa VI, pp. 249-371. There is a whole chapter on 
the Records. Compare Fatawa, Baillie, p. 763. 

2 Compare Shahjahan of Dihli, p. 127. "Every detail was 
recorded with scrupulous care and minuteness not at one place 
but at several places. It will not be too much to suppose that 
those records which passed through many hands were fairly 
accurate and supplied the want of written Law". Compare also 
Ibn Hasan, chapter on Farmans. See Mirat Supp. p. 149 
where reference is made to Record Keepers of the Court of 
Diwan. 



1 88 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

In most cases they bore the signatures or seals of the 
witnesses and a certificate of their correctness (Muta- 
biq asl) was given by the Qazi (Baqiat, pp. i, 2, 5, 9, 
10) under his seal. 

Reports 

Judgments were not regarded as binding pre- 
cedents on the points with which they dealt. The 
Courts were to decide according to what God had 
revealed (bima anzalallah) and not according to what 
man had decided and might have decided wrongly. 
We do not, therefore, find Law reports in the me- 
dieval period corresponding with those of Modern 
India. 1 

Aurangzeb (1657-1707) issued orders 2 in 1672 
for the preparation of "Mahzarnamahs" or records 
of judgments of higher Courts for circulation among 
the Qazis and Muftis^ 3 They were not published and 
it is not clear if the public had any access to them. 
The Hidayah (p. XXVIII) mentions a Digest of 
Cases (Mabsut) prepared by AbulJHasan bin Ali bin 
Muhammad. But neither the Mahzarnamah nor the 
Mabsut contains the details which are found in 
modern Law reports. 

During the Mughal period the Muftis were en- 
joined to copy out precedents to read and to place 
them before the Qazis. 4 

1 Compare J. R. A. S. 1910, p. 761. 

2 Compare Sarkar (1935), p. 234. My friend, Professor 
Habib, tells me that, according to Shams Siraj Afif, one Tatar 
Khan compiled several volumes of judgments of the Qazi of 
Dehli in the reign of Firoz Shah Tughlaq. 

3 Compare Mirat-e-Ahmadi I, p. 258. 

4 Sarkar (1935), p. 28. 



PROCEDURE IN COURTS 189 

Manucci does not regret the absence of Case 
law as it "discouraged venal lawyers and brought 
swifter justice." This statement is true, in spite of the 
collection of cases in the Fatawa, in the sense that 
cases referred to in the Hidayah or in the Fatawa 
could not be authoritative in the same way as modern 
rulings. They were not cited in the manner done 
now. No mention of the Court was made nor of the 
date of the decision. It was perhaps this fact which 
led Sir William Macnaghten to compile his 'Prece- 
dents' with dates and other necessary details in 1829. 

Representation through Lawyers 

(Fiqh, Kitabul Vakalat. Fatawa, vol. III. Kitabul 
Vakalat). (MS. Add. 22714 f. 8). Vakils. 

Their duties are mentioned in the two Muslim 
Indian Codes, Fiqh-e-Firoz Shahi and Fatawa-e-Alam- 
giri. They were known as Vakils, a term which still 
applies to them. Mawardj speaks of the profession 
and considers expert knowledge of the law necessary 
both for the practice of Law and for the acting as 
Qazi (J. R. A. S. 1910, p. 764). Mpreland thinks 1 
that the profession did not exist but contemporary 
authorities have referred to Vakils. 2 Ibn Batuta 
who was himself a Judge in the time of Muhammad 
Tughlaq (1315-1351) speaks of them (p. 194, Travels. 
Lee). Badaoni refers to Rae Arzani, a Hindu Vakil 
of Khan Zaman (p. 97, vol. II and p. 76, vol. II). 

1 India at the death of Akbar, p. 35. 

2 See (i) MS. Kalematut Tayyebat K. C. C. "Lawyers 
who were employed by litigants." (2) Br. Mus. MS. Addl. 26,239 
(Ruqaat) f. 20. "Hawala-e-vakil bayad kard een mard azan 
jamaat nest ki hamcshah ba yak taur saluk dashta bashand." 



190 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Sir Thomas Roe refers to his 'Solicitor* who perused 
his plaint (Roe's Embassy. Foster, p. 260). The 
petition of the East India Company was presented 
by Lawyers on the original side of the Emperor's 
Court. 1 The following cases were argued by Law- 
yers. 

1. Amin Khan vs. Manucci, Theft Case, Storia 
II, p. 198. 

2. East India Company vs. State, Civil Case, 
Ram Chander acted as Vakil, p. 134, Islamic 
Culture 1928. 

3. State vs. Mir2a Beg Kotwal, Murder, Qawam 
Uddin argued the Case, pp. 257-258, Khafi 
Khan II. 

4. Haji Zahid and Pirji vs. State, Civil Suit, 
Muhammad Mohsin acted as Vakil, pp. 250- 
251, Khafi Khan II. 

5. Mst. Feeta vs. Miran, Civil Suit, p. i,Baqiat. 

6. Azmatullah vs. Ghulam Muhammad, p. 5, 
Baqiat. 

7. Khwajah Ahmad vs. Abi Muhammad, p. 12, 
Baqiat. 

8. Nusrat Ali vs. Qaim Ali, p. 21, Baqiat. 

9. Ata Husain vs. Ashiq Husan, p. 34, Baqiat. 
A high standard was expected of Vakils "The 

practice of the Law" said Omar, the second Caliph 
of Islam, "was to be in good faith and pursued in 
sincerity as a calling." 

Vakils had a right of audience in Courts and were 
attached to the Staff of every King and his sons. 2 

1 Compare reference in Stewart, p. 541. 

2 p. 874, Alamgir Namah. 



PROCEDURE IN COURTS 



One Vakil was given the title of "Vak^Mj^an" in 
the time of Bahadur Shak^rjoy-i 71 2) (vide Bahadur 
Shah Namah MS. K. C. C.) for his successful advocacy. 

(Vakil-e-Sarkar) MS. 315 I. O. L. 

A client could withdraw 1 the powers of his 
Vakil. 

During the reigns of Shahjahan and Aurangzeb, 
lawyers were appointed to defend civil suits against 
the State and to assist poor litigants with free legal 
advice. They were, as I have mentioned, in the 
previous chapter, known as Vakil-e-Sharai (Khafi 
Khan, II, p. 249). The Vakils had to file their 'powers 
of attorney' (Vakalat Namah) in all cases (see Br. 
Mus. Or. 2011) and even today the form in which the 
power is filed in Court is more or less the same. 

Remuneration 

Remuneration was paid by the State to the 
Vakil-e-Sharai at the rate of Re. one a day (Mirat Supp. 
p. 149) but it is not clear what fees were charged by 
other Vakils from their clients. The order of Au- 
rangzeb directing the State Vakils to give free advice 
to paupers suggests that the practice of accepting 
'Mahentanah' was in vogue. No receipts of pay- 
ments have come to my notice, and the decrees in 
Baqiat do not mention the fees of the Vakils. 

Bar Associations 

There were no Bar Associations as the medieval 

1 See Firoz Shahi 'In surat Umar tawanad ke Zaid ra az 
vakalat ma 'zul kunad' f. 229. 



192 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Government was not based on modern democratic 
ideas, and there was no demand for such public 
organisations. 

Elevation to Bench 

As recorded elsewhere, Vakils could be appoint- 
ed Qazis in the districts where they were practising. 
A perusal of judgments in Baqiat shows that Qazi 
Qaim All was a local lawyer and officiated as Qazi 
for some time (p. 22), After he left the Bench he 
again appeared as a lawyer in Dunia Murai vs. Mir 
Shahamat (Ali Baqiat, p. 25) for the Defendant. 

Vakil in other Departments 

It should, however, be bome in mind that the 
word 'Vakil' was also a general term applied in those 
days to Agents (I. O. L. MS. 370) Shahjahan's 'dip- 
lomatic' representative at the Court of Aurangzeb 
was referred to as 'Vakil-e-An Hazrat', "Waqea'at-e- 
Alamgir MS. 1640 (Br. Mus. f. 39). At another 
place Sujan Rae in his Khulasat ut Tawarikh 1 has 
used the word Vakil us Saltanat or Vakil-e-Mutalaq 2 
for the Prime Minister. 

Pauper Suits 

There is no record of any indulgence being 
granted to pauper litigants, before the time of Au- 
rangzeb. In his reign the Vakils Sharai were re- 
quired to give advice free to the needy and the miser- 
able and according to Sarkar the Court fees, if any, 

*pp. 136,292. 

2 Compare MS. 11633 f. 31 Br. Mus. 



PROCEDURE IN COURTS 193 

were paid by the State. 1 As regards Court fees, this 
matter is discussed below, 

Suits against State 

Suits against the State are encouraged by the 
Shara 5 in order to keep the ruler within limits. Sultan 
Firoz Tughlaq in Futuhat-e-Firoz Shahi speaks of 
claims against the State which were to be filed in 
Law Courts. Sher Shah's proclamation declared 
that the State was not above Law and that no partia- 
lity was to be shown to it in the dispensation of Jus- 
tice (Elliot IV, p. 410). 

In suits against the State, there was no distinc- 
tion in the method of approaching a Court. The 
Qazis gave judgment in the ordinary course of busi- 
ness 2 . (Khafi Khan II, p. 249). 

In the following cases decrees were passed 
against the State: 

1. Haji Zahid and Pirji vs. State. (Khafi Khan 
II, p. 251.) 

2. Sher Muhammad vs. State. (Collections). 

3 . The State paid compensation due to a wrong 
order passed by KJtian-e-Jahan as Governor 
(Waqae, p. 72). 

The claim of the East India Company for com- 
pensation against the State for loss of property in 
the port of Surat was referred for regular trial to a 
Law Court by Aurangzeb (Capt. Hamilton I, pp. 227- 
232). 

1 Compare Sarkar. Anecdotes, p. 178. 

2 Compare Ameer Ali, Islamic Culture, 1927, p. 355. 



194 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Inquests 

According to Zia Barni, if a traveller died by 
chance, a public enquiry was held into his death in 
the presence of the Qazi by a Kotwal or the Faujdar 
in the capacity of a Magistrate and the Qazi had to 
sign a declaration or put his seal to it 1 that the death 
was not due to foul play, but to natural causes. In 
case of suspected foul play the Police were ordered 
to continue the investigation. 2 

Trial by Ordeal 

Trial by Ordeal was prohibited under Muslim 
Law. 

It was a Hindu institution as noticed in Chap- 
ter I. Neither the Sultans nor the Mughal Rulers 
favoured it, although they did not interfere with its 
use in the non-Muslim States under their protection. 
Captain Hamilton who visited India in the reign of 
Aurangzeb (1658-1707) has recorded a trial in South 
India where the accused person was required to 
put his hand in a pan of boiling oil. (Vol. I, 

P- 3*5)- 

The earliest attempt to introduce such form of 

trial was made by Sultan Jalal Uddin Khilji (1290- 
1296) when Sidi Maula was prosecuted for sedition 
and the Court declined to convict him on the state- 
ment of one prosecution witness. Sultan Jalal Uddin 
then wanted Sidi Maula to be thrown into a fire in 
order to test his truthfulness, but the Sadre Jahan 

1 Vide Tarikh c Mubarak Shahi, p. 18, Elliot IV. 

2 Compare Ameer All's remarks in Islamic Culture, 1927, 
p. 348. 



PROCEDURE IN COURTS 195 

and the other Judges refused to allow it. 1 

Akbar, in 1560, again tried to encourage the 
system of trial by ordeal probably in order to please 
the Rajputs, but the lawyers opposed the project and 
it was abandoned. 2 

L,aw of Limitation 

The Shara* fixes no limitation for anything. 
The author of Ikhtyar (MS. Add. 22714) mentions 
at several places that in criminal cases evidence was 
to be produced without delay (f. n). 

For summoning the evidence one month from 
the date of the presentation of the suit was recom- 
mended in Hidayah. 3 In the old Turkish Empire 
definite periods were prescribed within which evi- 
dence, oral and documentary, had to be produced. 
This was not prohibited by any express rule of the 
Shara' and, therefore, the Ulema agreed to it. 

There are no records to show if any regulations 
were issued in Medieval India limiting the time within 
which suits or appeals were to be filed. The Dastu- 
rul Amal MS. 2907 (I. O. L.) prepared in 1793 A. D. 
by the East India Company for its Courts in South 
India fixed a limitation period, but it did not show 
whether the regulation was borrowed from the sys- 
tem previously in force. 

Arbitration. (Tahkim) 

If two parties agreed to refer their dispute to 
arbitration the Umpire or the Referee (Salis) could 

1 Barni, p. 211; Badaoni I, p. 171. 

2 Compare Smith (Akbar), p. 345. 

3 Vide Br. Mus. Add. 22714 f. n. 



196 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

give a valid decree. The arbitrator was chosen by 
the parties out of Court, and his decision was binding 
on them. A Qasi could review the award of an 



arbitrator on a point of Law. (Kitabul Ikhtyar, 
p. 59) (Hidayah, pp. 338, 343). 

Misdemeanours, i.e. offences of man vs. man 
were not subject to arbitration which was allowed 
mostly in cases of Debt, Trade, Accounts, Commerce 
and petty quarrels. (Hidayah, p. 329). 

The Civil cases filed by the people in the local 
Panchayets were often decided by arbitration. In 
parts of India today, a readiness to accept arbitration 
by a local man is still noticeable among the peasantry. 

Compounding Offences 

In private complaints, which were not prose- 
cuted by the State, composition was generally allowed 
(p. 59, Kitabul Ikhtyar). In other cases the permis- 
sion of the court was necessary. The present Cri- 
minal Procedure Code in India has laid down that 
in certain petty criminal cases (S. 345 (i)) the parties 
can compromise without the sanction of the court 
while in a few more serious offences (S. 345 (2) ) either 
they can not do so or can do so only with the permis- 
sion of the court, but the Qazis went so far as to allow 
a murderer to expiate his offence by payment of 'Qisas' 
(blood fine) vide State vs. Nurjahan, Tuzuk (Shibli) 
p. 30 and Ata Husain vs. Ashiq Husain and others 
(1853) (Baqiat, p. 34), an obvious impossibility today. 

According to the Fiqh-e-Firoz Shahi (f. 284) 
the parties to a criminal case could compromise only 
if the accused was in the custody of the Court lest a 



PROCEDURE IN COURTS 197 

compromise should be exacted from him under pres- 
sure As sulh jaiz fil habsel Qazi wa la fil habsel Wall. 
For the same reason no weight was given to confes- 
sions made to the police. 1 

Compromise 

(Ki tabus Sulha, Fiqh-e-Firoz Shahi). 

The Shara* on the whole preferred 2 compro- 
mise. In Civil cases no obstacle was put in the way 
of compromise by agreement of parties (ba iqrar-e- 
fareeqaen. Baqiat, p. 17) and the decree was or- 
dered to be prepared in terms of such compromise 
vide Gada Husain vs. Fateh Alam and others, (Baqiat, 
p. 20). In British India even today, many Honorary 
and other Magistrates of the "old type" actually 
encourage the parties by exhortation to settle a cri- 
minal prosecution by compromise. 8 

Court fee and Stamps (Rusum) 

It was the practice of Courts in the pre-Muslim 
period to charge fees for the adjudication of disputes 
proportionate to the value of the subject matter. 
According to Dr. Mukerjea the fees levied were 
'Chauth, Dassatra and Pachatra.' The Muslim codes 
that were followed in India are silent on the point. 
The chapter Kitab-e-Adabul Qasi in the Fatawa-e- 

1 Vide Aurangzeb's order mentioned in the Chapter on 
Evidence. This tradition of the Law Courts in Muslim India 
is still retained in S. 24 of the present Indian Evidence Act. 

2 Compare Sahih Muslim Kitabul Aqziah: Al Qaza fil Isr 
lam, p. 20. 

8 The author has actually seen posted on the Court Notice 
Board a verse from some well-known philosopher praising 
compromise of disputes. 



198 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Alamgiri makes it discretionary for the Qazi to 
charge the price of paper and ink from the Plaintiff. 
The author of Tabaqat e Nasiri who was himself a 
Chief Justice under Sultan Nasir Uddin Mahmud 
writes that the Dadbak attached to his Court had the 
duty of levying fees ranging between 10 and 15% 
of the subject matter but this was abolished by Malik 
Saif Uddin who w r as appointed Dadbak during his 
term of office 1 as such fees were considered illegal. 2 

In his Enquiry into the Mughal System, (Col. 
Dow, 1 Vol. Ill, p. LVII) says that "legal fees were one- 
fourth of the matter in dispute, equally levied upon 
the Plaintiff and the Defendant", and that this regu- 
lation "was intended to prevent vexatious Law Suits 
as well as to bring to the people speedy justice." 

Stewart in his History of Bengal says that fees 
in the Courts of Judicature were ascertained with 
accuracy and precision. 

The judgments in Baqiat us Salehat and those 
in the Diwani office at Hyderabad bear no stamps 
and no mention of Court fee is made. Like Ben- 
tham, 3 Muhammadan Jurists have always considered 
the imposition of a court fee to be against public 
policy. 

It, however, appears to me that in Medieval times 
litigation was the exception and not the rule, 4 and 
that the Muslim Rulers in the beginning did not 
favour the idea of charging fees from litigants. Later 

1 Tabaqat e Nasiri Br. Mus. MS. Or. 1886; (Raverty), p. 788. 

2 Tabaqat e Nasiri (Raverty), p. 790. 

8 "Justice should be administered gratis" Bentham. 
4 Vide observations of Bhara Mai in Lubbut Tawarikh- 
e-Hind. Bernier, p. 236. Elliot VII, p. 172. 



PROCEDURE IN COURTS 199 

on as a measure to restrict the increase of litigation 
a scale of payments was fixed for the expenses of 
execution. Aurangzeb's Order mentioned in I. O. L. 
MS. 370 (Dastur) seems to prohibit the levying of 
any fee from a Plaintiff (Dar-tashkhees-e-Qazaya az 
muddai). The East India Company in 1774 "on the 
advice of Muslim jurists", considered the question 
of abolishing certain dues which the Plaintiffs had 
to pay on their plaints, but decided to retain them 
as "litigation was increasing". 1 

Costs 

The Courts had discretionary power to award 
costs in civil and criminal cases. In Ali Raza and 
others vs. Muhammad Wali and others, Baqiat, p. 18, 
the Court found the claim to be false (Mahez kizb) 
and yet awarded no costs to the defendant. 

Execution of Decrees 

Civil Cases 

According to Hidayah the execution of decrees 
was to be left to the Courts themselves 2 (p. 342). 
The rule was that "the Qazi ought to enforce the 
decree of his own or of another Court once it is 
passed. He cannot refuse execution even if it is re- 
pugnant to his own ideas". Execution cases were to 
be expedited, any unnecessary delay "subjected the 
Judge to the risk of compensating the aggrieved 
party." 3 A decree passed against the State was in no 

1 1. O. L. Records. 7th Report of the East India Company, 
p. 329, (Committee of Secrecy, 1772-1773). 

2 Vide Elliot V, p. 543. Mirat Supp. p 45. 
8 Compare Dow III, p. 334. 



200 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

way different in this respect from those granted 
against individuals, vide Haji Zahid and Pirji vs. 
State, (Khafi Khan II, pp. 250-251.) 

A decree could be transferred to a subordinate 
Court or officer for execution, and an executing offi- 
cer could recommend amendment of the decree to 
the Court passing it (Br. Mus. MS. Add. 16,859 f. 42a 
and 42b). Deposit of money in Court was allowed 
(Baqiat, p. 9). Imprisonment in default of payment 
was permissible (Hidayah, p. 338) and was given 
(Storia III, p. 263) but the debtor could be released 
on producing sureties (Storia III, p. 262). Compound- 
ing was allowed with creditors by the debtors. 1 

The Civil Courts in some cases sent their decrees 
for execution to the Amin or the Revenue officer 
of the Parganah where the judgment debtor resided 
Mohi Uddin vs. Qazi Pir Ali, Baqiat, p. 7. The Amin 
had the assistance of a number of Mirdahas (process 
servers) a term still applied to them in the United 
Provinces. The position of Amin in other matters 
is not the same today, but in Execution proceedings 
he is still the Chief Official who executes the Court's 
order. 

In cases where resistance was feared, the Courts 
could call upon the Kotwals to their aid or even the 
Faujdar and his subordinates (Ain II (Jarrett) p. 42). 

Moreland thinks 2 that the execution processes 
were "drastic 5 '. The debtor's goods were sometimes 
sold, including "his house property and among Mus- 

1 Compare Ishwari Prasad. Medieval India, p. 160. 

2 India at the death of Akbar, p. 37. 



PROCEDURE IN COURTS 2OI 

lims even the family of the debtor". The Shara' 
permits the enslavement of the debtor himself and 
in cases of Qisas it seems to have been actually or- 
dered. 1 The present Law of Execution of civil 
decrees (S. 60, C. P. C.) in British India leaves the 
judgment debtor a reasonable amount of his property 
for his sustenance and exempts from sale the house 
and implements of an agriculturist. 

Criminal Cases 

A convict sentenced to imprisonment was handed 
over to the custody of the 'Kotwal' 2 who was respon- 
sible for seeing that the sentence was carried out in 
the Jail of which he was in charge. 2 Fines 3 imposed 
in Ta'zir 4 cases were also realised by the Police under 
the command of the Kotwal or the Shiqahdar. 

In the matter of the execution of death senten- 
ces, "Executioners" or "Jallads" were appointed by 
the State during the Sultanate regime to behead con- 
demned prisoners or to flay them alive as was ordered 
sometimes in the time of Muhammad Tughlaq. 

Under the Mughals death sentences had to be 
confirmed by the Emperor or the Governor, and 
in practice during the reigns of Akbar and Jahangir 
many of the executions were carried out in the pre- 
sence of the Emperor himself. Shahjahan caused 
a condemned man to be bitten by a snake. But 
in Aurangseb's time capital sentences were in most 

iBriggsI, p. 253. 

2 Compare Ain II Jarrett, p. 42; Mirat I, p. 283. Anf, 
p. 494. 

3 Mirat I, pp. 282, 283, 293. 

4 See Chapter VII. In Ta'zir cases no sentence was fixed 
by the Shara'. 



202 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

cases commuted to imprisonment 1 and the Kotwals 
were ordered to see that no criminal deserving of 
death was impaled. 2 Terry says that executions were 
carried out after sunset 3 (Tuzuk, p. 24) and Governors 
alone were authorised to sign the death warrant. 4 

Commutation and 'Enhancement of Sentence 

As noticed above the King and the Governors 
within their respective provinces had power to 
commute or remit sentences, vide Storia III, p. 264 
and Manrique II, p. 115. A woman in Gujrat was 
accused of adultery and was sentenced to be stoned 
to death. The Governor remitted her sentence. 5 

In another case a noble woman convicted of 
adultery was stoned for three days but survived and 
her sentence was remitted. 6 

As regards enhancement, it appears from decid- 
ed cases that the Ruler alone possessed power to 
enhance sentence. In State vs. Prince of Gujrat, 
Mirat I, 49, the King enhanced the sentence without 
being moved to do so. 

There is no case extant of a Governor enhanc- 
ing a sentence although within the Province he 
represented the King. In State vs. Daryai Khatun, 
(Storia I, p. 201), the accused woman was prosecuted 
for adultery and for having sold her 19 paramours 
into slavery and the Governor probably, considering 

1 Compare Khafi Khan II, p. 550; Dow III, p. 397. 

2 Compare Mirat I, pp. 278-280; Dow III, pp. LVII and 397. 
8 Compare C. H. of India, IV, p. 182. 

4 Compare Ain II, p. 37; Terry, pp. 354-356. 

5 Mirat-e-Sikandari. Ref. in Briggs II, p. 352. 

6 Kerr's Collection of Voyages and Travels, IX, p. 278. 



PROCEDURE IN COURTS 203 

the sentence of 'sangsari' (stoning), which the Qazi 
might have ordinarily proposed, to be inadequate 
submitted the case to the King who ordered her to 
be torn to pieces by dogs. In a similar case, State vs. 
Laudhan (Elliot IV, p. 464), the Governor forward- 
ed the papers to the Sultan Sikander Lodi. 

Appeals, Murafeah : Fiqh 

Appeals could be preferred both on facts and on 
Law and there is plenty of evidence that they were 
preferred. 1 Sir Jadunath Sarkar's observation 2 that 
there was "no provincial Court of Appeal' ' is pro- 
bably based on an unsupported statement in the 
Encyclopaedia of Islam, II, p. 606 that no appeal 
could be filed against a Qazi's judgment. Kennedy 
in his "History of the Great Moghals" says 3 "there 
was always a final appeal to the Law officers at head- 
quarters" (of the Province or Districts) "If parties 
were not satisfied with those decisions (District 
Courts or Chief Provincial Qasi) they appealed to the 
Chief Qazi (Qazi-ul-Quzat) on matters of Law. 4 

The appellate Courts were known as Adalatul 
Allah (Br. Mus. MS. Add. 26,239 f. 4), but there does 
not seem to be any specific term regularly used for Ap- 
peal. Sometimes Lawyers have written Tajwiz sani 
(MS. 2907 1. O. L.) or Murafeah (Fiqh-e-Firoz Shahi) 

1 Compare (i) Moreland. India at the death of Akbar, 
p. 36. "We read of cases where such appeals were successfully 
made." (2) Al Qaza fil Islam, p. 24. (3) Dow III, pp. xxxm, 

LVI, XXX. 

2 (i935) P- "o. 

3 Vol. I, p. 308. 

4 Vol. II, p. 39. Quotation from Rae Bhara Mai, a con- 
temporary writer. 



204 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 



Mirat I,p. 283 and Aurangzeb in one of his judgments 
merely says "Istighasah" (Bt. Mus. MS. Add. 26,239 
f, 4). There is no word for appeal in modern Hin- 
dustani, except the word Appeal itself borrowed from 
the English. 

The system of obtaining redress from a higher 
Court, however, existed 1 and, according to Sir Henry 
Elliot 2 , if any individual dissatisfied with the decision 
(of the District Qazis) passed in his case appealed to 
the Governor or the Qazi of the Subah (Province), 
the matter was reviewed and judgment awarded 
with great care and discrimination, "lest it should 
be mentioned in the presence of the King that justice 
had not been done." 

In the following cases appeals were heard and 
judgment given against the trial court: 



i. Sikander Lodi's 
Court. 



Trial Court 9 s Judg- 
ment reversed. 



2. Governor of Agra's Trial Court's Judg- 

Court. ment reversed. 

3. Aurangzeb's Court. Trial Court's Judg- 

ment reversed. 



p. 102, Bev. I. 
Storia III, p. 264. 



MS. Kalematut 
Tayyebat 
K. C. C. 



4. Jahangir's Court. 



Trial Court's Judg- Storia I, pp. 174, 
ment reversed. 175. 



5. Shahjahan's Court. Trial Court's Judg- 

ment reversed. 

6. Aurangzeb's Court. Trial Court's Judg- 

ment reversed. 
Case remanded. 



Storia I, pp. 199- 
200. 

Waqae Alamgir, 
p. 72. 



1 Dow III, p. LVI. 

2 Vol. VII, pp. 172-173. 



PROCEDURE IN COURTS 205 

The King's Bench was the final Court of Ap- 
peal. In the Province the Governor's Bench was 
the final Court for the Province. It heard appeals 
from the Provincial Qazis' Court and from the deci- 
sion of the District Qazis. Appeals from the Gover- 
nor's Bench lay to the Emperor's Bench or to the 
Chief Justice's Court by way of petition, vide 
Ausaf All's case Baqiat, p. 28 and also Dow III, 
p. XXXIII. 

Powers of Appellate Court 

The Appellate Court could prosecute witnesses 
for perjury. 1 Jahangir, finding the story of the 
complainant in Muslim woman vs. Rajput, Storia I, 
pp. 174-175 to be false, ordered her prosecution. 
Such power was discretionary as it is today. A Court 
in appeal could grant bail, 2 take additional evidence, 8 
try a case afresh, 4 order a remand 5 or could decide 
any issue raised during the trial in the lower Court 
(Storia III, p. 264). It could either confirm or modi- 
fy the order of trial court or reverse it (Fiqh; Fatawa; 
Storia I, pp. 204, 174-175)- 

A Court of Appeal could make a reference on any 
point of Law to the Chief Justice's (Qaziul Quzat's) 
Bench. 6 

1 Compare Armenian's Case. Storia HI, p. 263, also Be- 
veridge I, p. 102. 

2 MS. (Kalimatut Tayyebat) K. C. C. p. 

8 Storia I, pp. 199-200. Beveridge I, p. 102. 

* Ibid. 

* Waqaej p. 78; Br. Mus. 26, 239 Add. Appeal of Horse 
Dealers. 

6 Compare Dow III* p. xxx 4. 



206 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Second Appeal 

Muslim jurists have written about second appeal, 
Murafa e-saniah (Br. Mus. MS. 22714 Add.) (MS. 
2907 I. O. L.) and it seems 1 that such appeals were 
admitted on a point of Law, vide Baqiat, p. 28; Elliot 
VII, pp. 172-3; Kennedy II, p. 39 and Lubbut Tawa- 
rikh-e-Hind by Rae Bhara Mai. For example, an order 
passed by a District Qazi could be challenged in 
second appeal either in the Court of the Subahdar 
(Governor) or the Qa2iul Quzat (Chief Justice). 

Rules 

No definite regulations existed about the pro- 
cedure for filing appeals by aggrieved persons, and 
the Appellate Courts seem to have accepted jurisdic- 
tion in every dispute that was taken to them. Per- 
haps the only check on the number of original cases 
and appeals was the rigour with which complainants 
in false cases were prosecuted 2 and the risk which 
they ran of being sentenced to death, vide Muslim 
woman vs. Rajput. (Storia I, pp. 174-175.) Aurang- 
2eb in 1 68 1 is said to have issued certain regulations 
barring civil appeals below a particular sum. 3 What 
they were exactly is not clear. 

There was no form prescribed for the memoran- 
dum of Appeal, which usually was contained in a 
petition addressed to a higher Court 4 filed by the 
party aggrieved or the 'next friend'. In Aurangseb's 

1 Compare Dow III, p. 334. 

2 Compare Dow III, p. 334. 

8 Compare Dow III, p. xxvu. 
4 Compare Dow III, p. xxxm. 



PROCEDURE IN COURTS ZOJ 

court once an appeal was filed by two brothers of 
a convicted person. Sarkar I, p. 174. 

The Appeal abated if the appellant died, vide 
Kotwal Mirza Beg vs. State, Khafi Khan II, p. 257. 

Copies of the decisions of Appellate Courts were 
sent to subordinate Courts, vide Aurangzeb's order 
in horse dealer's appeal (Waqae, p. 72 and MS. 370 
I. O. L.). There is no record extant of the Sultanate 
period. Presumably the practice must have existed 
then as well. 

Revision 

Courts established at a higher unit of adminis- 
tration could call for the record of a case from the 
file of a Court of inferior grade for inspection and 
pass proper orders suo motu or on application. Jahan- 
gir, of his own accord, interfered in a case where a 
Rajput, convicted of rape, was being carried by the 
side of his palace walls to a place of execution (Storia 
I, p. 175). 

Aurangzeb's restrictions on tight of appeal in 
certain civil cases in which the order of the Trial 
Court became final, as referred to above, may have 
encouraged the defeated party to challenge the deci- 
sion of the Trial Court on legal grounds as occurred 
in Ausaf Ali's case, Baqiat, p. 28, when the matter was 
referred to a "Bench." 

Reference (Rujoo') 1 could always be made by 
Courts to their Courts of Appeal and they could 
accept it or reject it (An havalah batil kunad. Fiqh- 

1 Compare MS. 2907 I. O. L. 



208 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

e-Firoz Shahi). According to another Muslim ju- 
rist a Qazi could ask the opinion of learned men in 
a case (Al qaza fil Islam, p. 9) and the advantage of 
this rule seems to have been taken by several Courts 1 
in Muslim India. 

Review of judgment : (Tajwi^ Sani) 

In theory a Qazi had unlimited powers to re- 
view his order. If it was against the Sacred Law, it 
was invalid in any case (Fatawa). According to 
Hidayah (p. 342) a judgment could be reviewed 
only when there was a patent illegality and it was 
against the Quran. 

A Qazi could review his predecessor's judgment. 

Both civil and criminal judgments could be re- 
viewed and the modern distinction 2 of curtailing a 
Criminal Court's power in this respect did not exist. 



Arrest^ Custody and Bail : (Kitabul Kifalat. 
Shahi ; Fatawa). 

Arrest (Hirasat) of an accused in "cognisable" 
cases \vhich were termed Hadd and Ta^ir, \vas neces- 
sary on the production of prima facie evidence (MS. 
Add. 22714) and bail or security (Zamanat a word 
still in use) was discouraged. 3 In theory, since the 
whole Muslim community was responsible for the 
administration of justice, every Muslim could arrest 
a person who committed a "cognisable" crime, 

1 State vs. Laudhan, Elliot IV, p. 464; State vs. Sidi Maula, 
Barni, p. 211; State vs. Qa2i Hammad, Mirat Supp. 45. 

2 See Ss. 367-369. Cr. P. C. 
8 Br. Mus. Add. 22714 f. 6 



PROCEDURE IN COURTS 209 

in his sight. The arrest of Sultan Raziah's murderer 
by a Hindu indicates that other subjects of the State 
were in the same position. 

All Criminal Courts had power to order arrest 
within their jurisdiction, of people committing "cog- 
nisable" offences (Waqae, p. 40). 

The Kotwal, who was generally in charge of 
arrests, had to report cases of arrest to the Qa2i and 
to obtain his order whether the arrested person was 
to be prosecuted or released (Mirat I, p. 283). 

The Faujdar had power to arrest persons but 
he had to submit a report to the Governor for orders 
as to further proceedings (Mirat I, p. 282). 

Bail 

The prisoner could, in every case, ask for bail. 
In a theft case against an accused a Hindu offered 
himself as surety and it was accepted (Storia II, p. 
199). In another case bail was refused by the Qazi 
but was allowed in Appeal by the Emperor (MS. 
Kalematut Tayyebat K. C. C). In the following 
cases bail was also granted: 

1. Murder Case. State vs. Deshmukh. (Collections) 

2. Theft Case. State vs. townmen. (Collections) 

3. Assault Case. State vs. Baqabillah. (Tazkiratul Ule- 

ma, p. 53). 

It w r as refused in State vs. Lakshman Banjara 
(Collections) and State vs. Madari Faqir (Collections). 
Aurangzeb laid emphasis on prima facie evidence 
before arrest (Mirat I, p. 278) and warned Courts 
against keeping a man under trial for a term longer 



210 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

than was strictly necessary. A Shiqahdar (Police 
Officer) was once convicted of the offence of wrongful 
confinement and sentenced to a fine of two hundred 
rupees (Manrique I, p. 425). The Qazi of the place, 
like the present Sessions Judge, was empowered to 
hear petitions for release from prisoners confined 
"upon any legal claim" (Mirat I, pp. 278-282). 

Appeal could be filed to the Qazi-e-Subah, if 
bail was refused by an inferior Qazi (MS. E. 380 
I. O. L.) or to the Emperor (MS. 370 I. O. L.).In 
"Cognisable" cases bail as a rule was not allowed 1 
(la yujawizul kifalat fil Qisas, Hidayah). 

Security for presence in Court 

A security offered for presence in Court was 
accepted if reliable (mo'tabar) vide State vs. Genoese. 
Storia I, p. 265; State vs. Manucci, Storia II, 
p. 199. 

Civil Imprisonment 

Arrest for non-payment of debts depended 
mostly on the exercise of private rights. It was not 
obligatory 2 for the Qazi to send the debtor to prison 
for non-payment of debt, unless he defaulted in 
making payment within the time fixed by the Court 
or in producing satisfactory surety, vide Storia III, 
p. 263. 

By the strict letter of the Law a debtor could be 
sold into slavery. 

1 MS. Add. 22714 f. 6. 

2 Compare Hidayah, p. 338. 



PROCEDURE IN COURTS 211 

Investigation and search 

Police officers in general were required to in- 
vestigate crimes (State vs. Khwajah Ahmad Afif, 
p. 506). Enquiry into offences relating to religion 
and morality were conducted by Mohtasibs either by 
themselves or in accordance with instructions issued 
by Courts or the Sadr. 

The Police had power to search the house or 
person of a suspect in the same way as a Police officer 
proceeds US. 96-103 of the Criminal Procedure Code 
in British India. A Qazi could himself search the 
house of an accused vide Storia III, p. 123. The 
person who obstructed a house search had to prove 
justification to avoid punishment. If he succeeded 
in proving his bona fide resistance the Police officer 
was liable for the wrong done to him vide Khafi 
Khan II, p. 257. 

A Police Officer could enter a house by force 
for purposes of search or arrest provided he had 
reasonable grounds for suspicion. 1 (Manrique II, 
pp. no, 137). 



1 Compare Al Qaza fil Islam; pp. 27-28. 



CHAPTER VI 
RULES OF EVIDENCE 

(Kitab ush Shahadat: Fiqh-e-Firoz Shahi). 
Principles of Evidence 

The Muslim Law of evidence is given in Fiqh-e- 
Firoz Shahi and Fatawa-e-Alamgiri, the codes that 
regulated procedure in Indian Courts. Baillie has, 
in his Digest (pp. 759-762) translated portions of the 
Fata\va-e-Alamgiri and I give below the main prin- 
ciples as interpreted by Muslim Judges in medieval 
India. 

The Hanafi Law classifies evidence in the follow- 
ing order of merit: 

1. Tawatur full corroboration. 

2. Ehad testimony of a single individual. 

3. Iqrar admission, including confession. 
The Muslim jurists have unanimously preferred 

Tawatur to any other kind of evidence. The insis- 
tence on corroboration is probably based on an 
injunction in the Quran "Ya ayyuhallazin amanu 
koonu qawwameen shuhdae lil qist". (O Believers 
shirk not the duty of giving evidence that is true 
for the sake of justice. Ch. 4. 135). 

As pointed out by the author of Hujjatul Bali- 
ghah it is incumbent on a claimant to bring evidence 
in his support. 1 

1 Compare Al Qaza fil Islam, p. 31. 



RULES OF EVIDENCE 213 

Competency of Witnesses 

According to Law all those who believe in 
God and respect the Book of Revelation, namely the 
Quran, could be competent witnesses "Udul". 1 A 
Qazi was, in theory, expected to keep himself inform- 
ed about truthful persons within his jurisdiction. 

The 'believers' could not be rejected as un- 
truthful unless proved to be so. The phrase "Mus- 
sulman ho kar jhut bolte ho" (Do you, the Mussul- 
man that you are, speak falsely), so commonly used 
in India finds its origin in the Quran which insists 
upon Muslims speaking the truth in every case 2 as 
'liars are doomed' Laanat Ullah alal kazebin. It 
seems to follow that in a Muslim Court evidence of 
a Muslim could be preferred 3 to that of a non-Mus- 
lim who "does not respect the Book of Revelation. 5 ' 4 
But in State vs. Islam Khan, a Treason case, vide 
Tabaqat e Akbari and Elliot IV. pp. 26-27, the rule 
was not observed and the solitary statement of a non- 
Muslim was accepted as sufficient for the conviction of 
the Muslim accused. The evidence of 'non-believers' 
again was relied upon by the Judges against 'believers' 
in the case of wounding the religious feelings of 
Hindus mentioned in Manrique II, pp. ii2-ii5. 6 



1 Compare J. R. A. S. 1910, p. 794. 

2 Compare (i) Hklayah, p. 353; (2) Baillie (L). 
3 Hidayah, p. 362. Baillie, p. (L) 

The testimony of a non-Muslim was not altogether to be 
rejected. 

4 Compare Hidayah, p. 360. 

5 The admission of one of the accused could not under 
the law be the sole basis of conviction, (see p. 218) but it was 
in this case corroborated by one non-Muslim witness. 



214 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

In Sultan Raziah's murder case referred to in 
Elliot HI, p. 593 an extra-judicial confession made 
by the Muslim accused in the hearing of a Hindu 
shopkeeper was accepted as admissible. 

Women could be competent witnesses but two 
women at least were required to corroborate a fact 
for which the testimony of one man was sufficient. 1 

In cases where women possessed special know- 
ledge, the testimony of one woman was relevant. 2 
The father, wife, grandfather and son of a man were 
not competent witnesses in his favour (Fatawa-e- 
Alamgiri, Vol. III. Kitab ush Shahadat; Hidayah 
p. 360), but in cases where relationship was to be 
proved their statements were accepted (vide Breach 
of promise case of Shahjahan's Court, p. 21, Rahbar-e- 
Daccan, 1341 F.). 

Opinions of experts were admissible (Al-Qaza 
fil Islam, pp. 54-55). Convicted persons, gamblers, 
habitual liars or those previously discredited as 
witnesses were assumed to be unreliable. 3 

Direct Evidence 

Direct evidence was preferable to hearsay 4 
which, however, w^as not altogether excluded. It 
was admitted somewhat freely in cases before the 
Faujdar where the accused persons' previous records 
and their likelihood to disturb the peace were in 
question. The Court could take judicial notice of 

1 Compare Baillie, p. (L). 

2 Compare Hidayah, p. 354. 

8 Al Qaza fil Islam, pp. 46-52. 
4 Baillie, p. XLIX. 



RULES OF EVIDENCE 215 

facts too well known to require proof. For a con- 
viction of theft the evidence had to be specially 
convincing. 1 This was probably due to the fact 
that the punishment for theft was cutting off the 
Defender's hand. 

Circumstantial Evidence 

'Qarinah' or circumstantial evidence could be 
accepted, if it was of a conclusive (Qate) nature. 2 
[n State vs. Madari Faqir (Collections) the accused 
*ras acquitted of the offence of theft as his merely 
running out of the house at night when the inmates 
^ere away, was not considered sufficient to prove his 
>uilt. Indirect evidence could be tendered of offen- 
ds like adultery, (MS. Add. 22714 f. 63) as was held 
n State vs. Muslim Trade Commissioner referred 
:o in Monserrate, p. 210. In a case mentioned in 
Storia I, p. 203, a Hindu scribe sued a Mughal soldier 
: or enticing away his wife. The wife denied that 
he complainant was her husband, but the Court 
[Shahjahan) not satisfied with her statement, suddenly 
>rdered her to fill the Court inkpot with ink. The 
voman did the work most dexterously and the Court 
included that she was the wife of the Hindu scribe 
md granted him a decree and the Mughal soldier 
vas expelled from service. In another civil suit by 
bur merchants of Delhi Shahjahan in giving his 
udgment in appeal relied mainly on circumstantial 

1 Compare Marshall's remarks in his Diary, p. 391. 

2 Compare Al Qaza fil Islam, p. 75; Judgment of Sikander, 
Jeveridge I, p. 102. 



21 6 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

evidence to arrive at the conclusion. 1 

Oral and Documentary Evidence 

Documents duly executed and books kept in the 
ordinary course of business were accepted in evi- 
dence. 2 But oral evidence was preferred 3 to docu- 
mentary. If deeds alone were produced the Courts 
were to insist upon examining the party which pro- 
duced them. In the case mentioned in Storia III, 
p. 263, oral evidence was accepted as a good proof 
of a debt and documents, if any, were not called for. 
Nowadays the Indian Civil Judge adopts the precisely 
contrary process of regarding parole evidence with 
distrust, unless it is supported by documentary evi- 
dence. 

Legally, however, documentary evidence was 
perfectly relevant (Fatawa Vol. Ill, pp. 534-535) and 
there is an instance of a written affidavit being accept- 
ed in Manucci vs. Portuguese, Storia III, p. 128. A 
statement made in a criminal case was admitted in a 
civil suit against the person who made it, vide Storia 
I, p. 200. 

Admissions 

(Iqrar. Fatawa Vol. IV. Kitabul Iqrar). 
Decrees could be given on admission (Iqrar) 
provided it was unconditional. Dr. Vesey-Fitzge- 

1 Storia I, p. 204. Also compare State vs. Khwajah Ahmad 
Afif, p. 507. 

2 Compare Fatawa III, p. 534. Compare Ss. 32, 34, 35 In- 
dian Evidence Act. 

3 Compare Al Qaza fil Islam, p. 80. Such was the practice 
of the Early Caliphs. 



RULES OF EVIDENCE 21 7 

raid, author of Muhammadan Law, suggests that 
acknowledgment fills a large place in the (Mus- 
lim) Law of evidence and even makes in-roads 
on the substantive law (p. 28). He has based 
his statement on the opinion expressed by the Tur- 
kish Shaikhul Islam. The importance of admission 
is undoubtedly great in cases of declarations about 
dower (mehr) paternity and was so generally in 
civil cases in India. In criminal cases a confession 
was admissible in evidence (State vs. Khwajah Ah- 
mad. Afif, p. 508). In State vs. Mian Malik the 
accused made a confession and it was relied on 1 
(Elliot IV, p. 454). In State vs. Moqarrab Khan 
(Tuzuk, p. 83) it was also accepted. In another case 
of Treason confessions made by two out of four 
accused and implicating both the makers and their 
co-accused were accepted by Jahangir (Tuzuk, p. 28) 
against the makers only. These two men were 
executed and the cases of the other two were re- 
manded for further enquiry. 

This shows that the confession of one co-accused 
was not conclusive against the other co-accused, 
though it might be admissible. 2 

It seems, however, that the courts were not 
bound to accept confessions, and, indeed, that they 
w^ere enjoined to look for further evidence. A 
confession made under threat or inducement was 
inadmissible (MS. Add. 22714 f. 33). Aurangzeb 
in remanding 3 a complaint case said: 

1 Compare Kennedy I, p. no. 

2 See State vs. Khwajah Ahmad Afif, p. 507. 

3 Waqae, p. 88 (I. O. L.) 



21 8 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

"Qazi wa Amin tahqeeqat mudaqqaq o muta'sseb 
bayad kard ke bayak Iqtar o Inkar kar tamam na kunad". 

(MS. Raqaem e Keram K. C. C.) (MS. Add. 
26,239 Br. Mus. f. 16). 

(The Qasi and the Amin should make thorough 
enquiries and not decide the case on a mere 
admission or denial). 

The ruling apparently applies both to civil 
and criminal cases. In cases of theft and change 
of religion a confession alone was not to be 
acted upon (Kitabul Ikhtyar MS. Add. 22714 
S. 32, 33). This presumably was laid down judi- 
cially at some time or other. A confession made 
by a Vakil (Lawyer) on behalf of his client was not 
admissible on the ground of Istehsan, though it 
could be tendered (MS. Add. 22714 f. 8). If an 
accused confessed his guilt and then retracted and 
the case was proved, the sentence was to be less 
severe (Kitabul Ikhtyar Add. MS. 22714 S. 32, 33, 
112, 113). No other authority has been discovered 
to support this curious statement. 

The value attached to admission (Iqrar) seems 
to survive in the tendency of assessors in an Indian 
Sessions Court to pronounce an accused person 
guilty, whenever a hinc of a confession appears from 
the evidence or from gossip outside the Court, how- 
ever, inadmissible legally such confession may be. 

The tendency to rely implicitly on admissions 
was noticed in the Fatawa-e-Alamgiri 1 and was de- 
precated especially in cases of theft. 

1 Cal. Vol. IV. pp. 213-312. Luck. Ill, p. 410. 



RULES OF EVIDENCE 219 

Estoppel and JLesjudicata 

The principle of estoppel was recognised. A 
party could prove conduct by his adversary which 
precluded him from raising any particular claim or 
defence. In Azmatullah and M. Muqim vs. Ghulam 
Muhammad and others, Baqiat, p. 5 the Court held 
that the claim had already been decided by a com- 
petent court and that since the decision had not been 
appealed against no further suit on the same issues 
could be brought by the plaintiff. 

Method of Recording Evidence 

The party producing a witness examined him 
first (Izhar) 1 and then the other side could cross- 
examine him (Jirah). The statements of witnesses 
were reduced to writing (Muzhir. Baillie, p. 764) 
by the 'Katibs' of the Court. The presiding officer 
was at liberty to ask any question he pleased (Kitabul 
Ikhtyar MS. f. 65) and as laid down in Ain I (Text) 
p. 283 he was required himself to make thorough 
enquiries by examination and cross-examination of 
each witness separately (juda juda. Ain Text I, p. 
283). The depositions were read over to the wit- 
nesses by another official Sahebul Majalis. 2 

It is suggested in Ikhtyar (MS. Add. 22714 f. n) 
that in criminal cases witnesses must be produced 
within one month of the filing of the complaint. 
Long adjournments were not favoured. 

1 The word 'Izhar' is still used in Indian Courts. Compare 
Fatawa, Kitab Adabul Qazi. 

2 Fatawa. Baillie, p. 766. 



220 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

The Court had to give its decision on the evi- 
dence which had been put before it and not wait in- 
definitely for further evidence, vide case mentioned 
in Storia III, p. 264. 

Courts had to see that the identification of pro- 
perty and of the accused by witnesses, was exact 
and explicit. Where witnesses differed the accused 
was entitled to the benefit of the doubt (Hidayah 
Book XXI Ch. Ill and Kitabul Ikhtyar MS. Add. 
22714 f. 8). In allowing an appeal against a con- 
viction for rape Jahangir dwelt on the fact that the 
identification of the accused should not be ignored 
in proper cases (Storia I, p. 174). 

Evidence on Commission 

Evidence could be taken on commission if the 
Qazi of that place could certify that the evidence was 
taken in his presence (Hidayah, pp. 3404-31) (Fiqh-e- 
Firoz Shahi f. 210). If it was not taken in his pre- 
sence, it was not admissible (Fiqh f. 22 j) 1 . In Bibi 
Zadi vs. Mir Wali, Baqiat, p. 16, the Qazi recording 
such evidence obtained the signatures of all the 
persons interested in the case at the bottom of the 
statement itself. 

Number of witnesses 

No number was fixed, but four witnesses were 
required generally in cases of adultery 2 because of 
the impossibility of securing genuine eye witnesses, 

1 Compare Ss. 503, 507, 508, Cr. P. C. in Br. India. 

2 Compare Hidayah, p. 353. (MS. Add. 22714 ff. 60, 61). 



RULES OF EVIDENCE 221 

and three for a claim to be adjudged insolvent. 1 On 
an average two "Adil" or truthful witnesses were 
necessary to support a suit. 2 The matter seems to 
have been discretionary with the Courts, and the 
Quran has not prescribed any limit. 3 In State vs. 
'Vizir' Elphinstone (1857), P- 35^ the statement 
of one Hindu witness was relied upon for 
a conviction of Treason. In a case of attempt to 
murder referred to in Briggs IV, p. 517, the evidence 
of one witness alone was accepted as sufficient, 
while in State vs. Sidi Maula (referred to in Barni, 
p. 211, Badaoni I, p. 171) it was rejected. 

Oath (Saugdnd). 

Oaths were administered to witnesses (Ain Vol. 
II, pp. 37, 41). The Muslims said 'by God' 4 (Baillie 
748), the Hindus swore on the cow, and the Chris- 
tians on the Bible. 5 Ovington, an English traveller, 
who attended several courts in Muslim India says, 
" In controversies and decisions of right oaths are 
administered and made use of here as well as in Chris- 
tendom." 6 

In Nusrat Ali and others vs. Qaim Ali, Baqiat, 
p. 21, the plaintiffs refused to take an oath and their 
suit was dismissed. 

1 Al Qaza fil Islam, p. 60. 

2 Compare Abu Daud Sajistani. Kitabul Aqziah; Quran: 
"Shahidacn." 

3 Compare Al Qaza fil Islam, p. 61. 

4 Storia I, p. 107. 

5 Compare Storia III, p. 128. "To swear upon the Holy 
Evangelists". 

6 A Voyage to Surat 1689. p. 138. 



222 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

In another case, Mohi Uddin vs. Anbart Baqiat, 
p. 9 the patties were allowed to go to a mosque where 
the plaintiff was to take the oath. Anbart, defendant, 
was a Hindu, but he agreed to this procedure. 



CHAPTER VII 

TENDENCIES IN CRIMINAL 
ADMINISTRATION 

Main principles^ 

Mawardi defines 1 Criminal Law as compelling 
those who would do each other wrong, to "mutual 
justice and restraining litigants from repudiating 
claim by inspiring fear and awe in them/' The au- 
thor of Fathul Qadeer 2 further classifies offences as 
those which are against God or public rights (Huquq- 
ullah) and those that violate private rights (Huququl 
Ibad). The ruler owes a duty first towards God 
to purge this world from sin, and then to his subject 
who suffers in consequence of the act complained 
of, but whose suffering is of secondary importance 
compared with the injury done to God's authority. 
In Islam the State belongs to God, and, therefore, a 
violation of public rights is an offence against God, 
while infringement of a private right is an offence 
mainly against the individual concerned. 

Three kinds of Punishment 

X 
Every violation of a public or a private right 

is punishable in three ways. The first is c Hadd' 

1 Compare J. R. A. S. 1911, p. 635. 

2 Compare Kitabul Ikhtyar, p. 5. (Azamgarh). 

15 



224 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

wherein the punishment (uqubat) is fixed 1 by the 
Shara'. It is applicable in the following cases: 

1. Theft (Sarqah) or robbery (Qata utturq). 

2. Whoredom. (Zina). 

3. Apostasy. (Irtidad). 

4. Drunkenness. (Shurb). 

5. Defamation, (Itteham-e-Zina). 

The object of 'Hadd' is to clean the world of 
sinful men. It is applicable to Muslims and non- 
Muslims alike. The earlier Muslim jurists were 
of the opinion that in every case the fixed punishment 
must be inflicted. For instance the cutting off of the 
offender's hand ordered by a trial court in a theft 
case was changed by an Appellate court to imprison- 
ment, but the decision was not approved of in the 
Fiqh-e-Firoz Shahi, although during the reign of Firoz 
Tughlaq (1351-1388) the mutilating of criminals 
was expressly forbidden (Briggs I, p. 462). Aurang- 
zeb at a later date (1672) definitely declared in his Far- 
man 2 that the sentence of cutting off a hand need 
not be awarded in the first instance, if the circums- 
tances permitted, and at any rate it was not to be 
inflicted upon lunatics, infirm persons, and minors. 3 

It was the duty of the State to prosecute all cases 
punishable by 'Hadd' (ijrae hadd-e-sharai har che 
lazim ayad). The proceedings usually started at 
the instance of the Police, 4 though private persons 
too had a right to institute them by complaint, vide a 

1 Compare MS. Acid. 22714 ff. 3, 4. 
2 Br. Mus. MS. Add. 6580. Mirat I, p. 278. 
8 Compare Br. Mus. MS. Add. 22714 ff. 3, 4. 
4 Mirat I, pp. 282, 283. 



TENDENCIES IN CRIMINAL ADMINISTRATION 225 

Kashmiri Alim vs. Mir Murtaza, Khafi Khan II, p. 565; 
Muhammad Amin Khan vs. Manucci, Storia II, p. 197. 

The second form of punishment is Ta'zir which 
literally means prohibition. According to Nihayah 
it applied to cases not covered by 'Hadd.' 1 

In Hadd the sentence was fixed and unalterable, 
while in Ta'zir the courts could regulate it in any 
suitable manner, and were free to invent new punish- 
ments such as cutting out the tongue, impalement, 
etc. The matter was discretionary or one which 
could be regulated by the Sovereign. Aurangzeb 
accordingly issued a comprehensive Farman 2 de- 
fining such cases. 3 

Under Ta'zir came counterfeiting coins, hurt, 
gambling, minor theft cases, etc. The administration 
of Ta'zir placed a special responsibility on the Ruler 
and the Judge. During the medieval period no effort 
was made to standardise punishment for such offences. 
No limit was fixed 4 for imprisonment. Aurang2eb 
finding that in certain cases convicts were kept too 
long in prison, issued 5 orders that the Qazis and the 
Governors were to visit 6 the jails regularly and hold 
"jail deliveries. " Some courts preferred to impose 
fines. This practice was discouraged by Aurangzeb 7 

1 Compare MS. Addl. 22714 f. 4. 

2 Mirat I, pp. 277-282. 

3 It may be interesting to notice that the title given to the 
Hindustani translation of the Indian Penal Code is Ta'zirat-e- 
Hind. 

4 Compare Ibn Hasan, p. 336. 

5 Mirat I, pp. 277-282. 

8 MS. Add. 6580 f. io4b. The duty of inspecting the jail 
in British India is still imposed upon Magistrates and Judges. 
7 Mirat I, p. 293. 



226 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

(Chun Ta'zir bilmal Shara'n jaiz nest), although fine 
in the form of 'Dyath* compensation was allowed 
(Hidayah, p. 660). 

The third form of sentence covered homicide 
cases. It was called Qisas or blood fine and may 
be compared with the Weregild of the contemporary 
English period. Qisas was payable by the man who 
killed another, unless that other were himself under 
sentence of Law to die. 1 In State vs. Empress Nur- 
jahan Tuzuk-e-Jahangiri Shibli, p. 30 the complainant 
accepted compensation, but in State vs. Prince of 
Gujrat, Mirat I, p. 49 the King's Court in Revision 
disapproved of the award of mere compensation and 
enhanced the sentence to death. Both these cases 
were prosecuted on a private complaint. It \vould 
thus appear that the courts had a discretion to allow 
homicide cases to be compounded 2 and that the 
State did not consider it part of its duty to prosecute 
them. Murder and homicide seem to have been con- 
sidered essentially private grievances. 3 It was held 
by Jurists that in Qisas "the right of God's creatures 
prevailed" and the State came in only, if desired to do 
so by a complaint of the aggrieved party. 

In 'Hadd' offences the aggrieved party could 
not be awarded compensation. In both Hadd and 
Qisas cases the accused person was kept in custody 
during trial and was not allowed bail. 



!MS. Add. 22714 f. 5. 

2 See State vs. Khwajah Ahmad. Afif, p. 508. 

3 (Dar qisas haqqul abd ghalibast). MS. Add. 22714 f. 5. 



TENDENCIES IN CRIMINAL ADMINISTRATION 227 

Treason 

Treason (ghadr) was looked upon as an offence 
against God and religion. For this reason prosecu- 
tions for treason were in most cases launched in the 
"Canon Law" courts, vide State vs. Islam Khan, 
Elliot IV, p. 27, State vs. Sidi Maula, Beveridge I, 
pp. 75-76. In the majority of these cases the punish- 
ment inflicted was death, 1 unless the ruler chose to 
exercise his prerogative of mercy. 2 No distinction 
was made between Muslims and non-Muslims 3 in 
awarding sentence or between highly placed persons 
and ordinary subjects. 4 In State vs. Qazi Jalal Uddin 
Afghani and others (Ibn Batuta, p. 146), one of the 
persons accused of treason was Shah Haidari, a holy 
man of some reputation. The only evidence against 
him was that he had given the principal accused 
Qasi Jalal Uddin a cap to wear as a Talisman. He 
was nevertheless convicted of abetment and put to 
death. 

Emergency Powers 

As always happens in any State, special measures 
were sometimes necessary to deal with revolts or 
internal disturbances. The orders issued for this 
purpose to the Military by Indian Muslim rulers were 
referred by the Lawyers to the doctrine of Darul 
Harb which meant a temporary suspension of the 
guarantees enjoyed by the subjects in a State for as 

1 Compare Ibn Batuta, pp. 146-147, 149. 

2 Compare Dow III, p. LVIII; State vs. Rae Rae Singh. 

3 Compare Briggs HI, p. 96; Anecdotes by Sarkar, p. 141. 

4 Compare Brlggs III, pp. 96, 265; Anecdotes (Sarkar), p. 
141. Ibn Batuta, pp. 146-148. 



223 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

long as the conditions in the land required. The 
doctrine according to Muslim jurists 1 was to be 
applied usually against an alien State or people for the 
protection of religion, when a 'Jehad' or Holy War 
could be declared. In stating the Law on the sub- 
ject to Muhammad Tughlaq (1325-1351) Qazi Zia 
Uddin said 2 that such a step could be taken firstly 
against those who were alleged to be in revolt or 
from whom the King feared a revolt and there was 
proof of their intentions (ghadar-e- O tahqiq shawad); 
secondly against those who were openly in rebellion or 
those who were leading it (sarghana-e-bagha shawad) 
or helping it (madad wa maavinat kunad); and thirdly 
against those who disobeyed the just orders of the 
Sultan which meant that they were disobeying God, 3 
but proof of damage to the State was necessary 
(Zyan-e-mulk shart ast). 

It appears that most rulers treated all kinds of 
rebels as aliens, and held 4 that any organised opposi- 
tion from the people was sufficient to justify their 
assumption of emergency powers. They regarded 
disobedience to an order issued by them as disobedi- 
ence to God (Irtikabe khilaf an ke dar haqiqat khilaf- 
e-hukme khudast) 5 and damage to the State (Zyane 

1 Compare Fatawa. Baillie, p. 173. 
2 Barni, pp. 510-512. 
3 Barni, p. 510. 

4 Compare Muhammad Tughlaq's reply to Zia Uddin Bar- 
ni. Barni, p. 511. Compare prosecution of Khan Muhammad. 
Briggs II, p. 346. 

5 Compare Mirat-e-Ahmadi I, p. 251. 

Muhammad Tughlaq's token currency has the following 
superscription l ^xyt^lbt & ^tloLJf^lbt ^ man ata* us Sultan 
Faqad ata* ur Rahman. 



TENDENCIES IN CRIMINAL ADMINISTRATION 229 

mulk) was accordingly presumed. Some Sultans 
went further like Meeran Husain of Ahmadnagar 
who fearing an intrigue put fifteen Princes of his 
family to death in one day (Briggs III, pp. 270-271) or 
like another King who ordered the body of the Prime 
Minister to be hewn into pieces on a mere suspicion 
(Briggs HI, p. 274). 

Firoz Tughlaq (1351-1388), however, was more 
cautious 1 than others and Aurangzeb in an order 2 
issued to one of his governors seems to have res- 
tricted the use of such extraordinary powers to 
cases of active rebellion or riots (fasad). 

Persons who were imprisoned for offences of 
rioting by Governors could not be released by the 
Qazis as a result of their jail inspections. 3 

Prosecution in general by State 

The Shara' allowed the Ruler authority to 
punish grave offences for the ends of justice, although 
the injured party might "waive his private claim to 
compensation or redress." 4 In offences of riots, 
homicide, theft, and adultery the Qazis had power to 
order a Police investigation or to make enquiries them- 
selves, 6 vide Storia III, p. 123. The State was regarded 
as responsible for taking proceedings against the 
offender, when the alleged offence was contrary to 

iBarni, p. 573. 

2 Mirat I, p. 336. Compare Alamgir Namah, p. 1079; 
Khafi Khan II, p. 550; Dow III, p. LVIII. 

3 MS. 6580 f. nib. 

4 See Mst. Sebha vs. Moynoola. Administration of Justice 
of Muslim Law by Dr. M. U. S. Jung, p. 102. 

6 Compare Dow III, p. LVII. 



Z}0 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

morality as understood by the Law of Islam (ahkame 
shara* bar anha jari sazand). 

Contempt of Court Proceedings 

Interference with the disposal of judicial work 
was a serious offence, punishable with much greater 
severity than the present Law in India would permit. 
The Qazi of Agra once sentenced a man to death for 
abusing the Court. The accused was saved from 
the gallows by the Governor who refused to confirm 
the sentence (Storia III, p. 264). 

In Sadiq vs. Shakur a governor was dismissed 
for delaying to send an accused summoned by the 
Qazi-e-Subah (Aurangzeb V, pp. 421-422). 

Prince Dara was severely censured by the Em- 
peror, Shahjahan, for taking an accused forcibly out 
of court (Storia I, p. 265). 

Prince Kam Bux, a favourite son of Aurangzeb, 
was sent to prison for assaulting an officer of the court 
(KhafiKhanll, p. 437). 

In State vs. Yaqub and Nairn, Briggs IV. p. 5 19 
the accused, who were powerful nobles of the Em- 
pire, one of them an ambassador at a foreign court, 
had procured the murder of a Qazi, because he had 
given a judgment unfavourable to them. They 
were executed in public with great brutality by the 
order of Akbar. 

The Court, where 'contempt' was committed, 
could either take action itself and punish the offender 
under Ta'zir (Storia III, p. 264) or report the matter 
to the Governor or the Emperor, vide Sadiq vs. Sha- 
kur (Aurangzeb V, pp. 421-422). 



TENDENCIES IN CRIMINAL ADMINISTRATION 23! 

Similarly assaults on public servants were pu- 
nished with severity, vide State vs. Yusuf, Briggs IV, 
p. 517; also Wazir's case Ibn Batuta, pp. 146-147 and 
State vs. Khorasani, Shams Siraj Afif, pp. 496, 497. 



CHAPTER 
PREVENTION OF CRIMES 

Punishment in general 

The severity of punishment (syasat) for criminal 
offences was a companion feature to medieval admi- 
nistration. Sporadic outbreaks of crime such as 
robbery and murder and the consequent discontent 
among the subjects tended to increase the uneasi- 
ness of medieval rulers and to induce them in many 
cases to inflict penalties wholly opposed to the spirit, 
if not the letter, of the Shara'. 1 Monserrate who 
claims personal experience of executions writes that 
the death sentence was usually passed in offences of 
murder, treason, theft from Royal Treasury, adul- 
tery by a married person and oppression of Ryots 
by officials 2 . According to the author of Tarikh-e- 
Firoz Shahi the prevailing notion among some of 
the Sultans was that a ruler could not enforce his 
authority without executing 'rebellious' persons. 8 It 
is said of Muhammad Tughlaq (1325-1351) that he 
enquired of Zia Uddin Barni in what cases capital 
punishment could be awarded, and that the latter 

1 See Quran. "Allah ya murukum bil adl wal ehsan." Any 
injury done to the family of the accused was distinctly against 
the Shara', Badaoni I, p. 239; Compare Khafi Khan II, p. 550 
"az anke bar pas ryaet-e-Shara* syasat ra kar nami farmudand." 

Commentary, pp. 85-87, 209-210. Fryer I, p. 244, 

8 Barni, pp. 550-551. 




Executions 



PREVENTION OF CRIMES 233 

said, 1 "In three cases only according to Quran. 
Firstly apostasy, secondly shedding of innocent blood 
and thirdly adultery." Muhammad Tughlaq rep- 
lied, "All this may be very true, but mankind has 
become much worse since those laws were made." 
It was Muhammad Tughlaq again who flayed alive 
a man convicted of Treason and exhibited his corpse 
in public while the Executioner was ordered to pro- 
claim, "Thus shall all traitors to their King perish." 2 
At another place Sultan Balban ordered a Governor 
convicted of manslaughter to be given over as a 
slave to the complainant (State vs. Haibat Khan, 
Briggs I, p. 253). In the more advanced times of 
the Mughal Emperor, Akbar, (1558-1605) we hear 
of an officer of the rank of Chief Trade Commissioner 
being strangled to death and gibbetted for adultery 
(Akbar Namah III, pp. 390-391). Akbar himself threw 
Adham Khan, who had committed a murder, down 
the battlements of his Fort. 3 Jahangir took interest 
in seeing condemned prisoners torn to pieces by 
elephants. 4 It was also in the reign of Jahangir that 
limb after limb of a dacoit, with seven previous con- 
victions, was torn till he died. Shahjahan felt satis- 
faction in administering poison to a corrupt kotwal 
and in seeing him breathing his last in open court. 
(Storia I, p. 197). 

In some cases when the rulers felt they had 

1 Briggs I, p. 436. 

2 Beveridge I, p. 90. 

8 Hawkins and Purcha's Pilgrims, Vol. I, p. zzo; also paint- 
ing from Akbar Namah Indian Section of Albert and Victoria 
Museum, South Kensington. 

* Elliot III, p, 618; Compare Elliot VI, pp. 503-504. 



234 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

enough of "Syasat," they prohibited 1 mutilation of 
hands and resorted to wholesale banishment. In 
one of his regulations forbidding the mutilation of 
limbs, Firoz Tughlaq proclaimed (Briggs I, pp. 463- 
464). 

"I will on all occasions cause to be banished 
from the realm persons convicted of the fol- 
lowing crimes: 

1. Those who profess atheism. 

2. Who maintain schools of vice. 

3. All public servants convicted of corrup- 
tion or of receiving bribes/ 5 

No distinction was made between Hindus and 
Muslims in the matter of punishment. Even in 
Canon Law cases or offences against religion the same 
severity was show r n to the Muslims as to any other 
non-Muslim, vide State vs. Sarmad, State vs. Portu- 
guese Friar, (Sarkar III, p. 113) and State vs. Bindra- 
bund, Stewart, p. 410. Ali Muhammad Khan men- 
tions 2 a case where Qasi Hammad, a man celebrated 
for his piety and a Qazi-e-Subah, was sentenced to 
death for arrogating to himself attributes of Divinity. 
One of the Judges on the Bench was Qazi Mian ji, the 
teacher and a close friend of the accused. 

Extenuating Circumstances 

Aurangzeb who made a special study of the 
Law 3 , however, showed distinct reluctance 4 in con- 

1 Firoz Tughlaq. Briggs I, p. 462. 

2 Supp. pp. 45-46. 

8 Alamgir Namah, pp. 1074, 1085-1092. Ovington, p. 138. 
4 (i) Khafi Khan II, p. 550. (2) Alamgir Namah, p. 1080. 
(3) Dow III, p. 397. 



PREVENTION OF CRIMES 235 

firming death sentence or awarding severe penalties, 
and in cases other than murder encouraged pardon- 
ing first offenders. 1 During the reign of an earlier 
Sultan (1397 A. D.) a woman in Gujrat was convicted 
of adultery for which the normal penalty was death, 
but the Qazi found that there were extenuating 
circumstances and allowed her to go after admoni- 
tion. (BriggsII, p. 352). 

The right of self-defence was recognised. A 
lad of 15 on whom an attempt at sodomy was made 
and who stabbed and killed his assailant, was acquit- 
ted and his action commended. (Fryer I,, p. 245). 
Similarly a "Moor merchant" killed his wife and 
child because he had seen the wife with her para- 
mour and he was sentenced to "a pecuniary mulct" 
only. 2 

Public overawed 

Executions were carried out in public 3 for the 
ostensible purpose of deterring future criminals, 
and sometimes the convicted person was taken, on a 
donkey round the streets of the city (State vs. Arme- 
nian, Theft Case, Fryer I, p. 244). Treason pro- 
vided the ruler with novel ideas for overawing the 
people. In State vs. Shah Haidari and others, Ibn 
Batuta, p. 146, a Treason Case, Muhammad Tughlaq 
felt no scruples in slaying a holy man in public and 
in State vs. Shaikh Had, 4 another man of well-kaown 

1 Farman. Mirat I, pp. 278-283. 

2 Fryer I, p. 245. 

3 Terry, p. 354. 

4 Compare Ibn Batuta, p. 146. 



236 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

piety, Ibn Batata tells us that the flesh of the accused 
who was convicted of Treason was roasted with rice 
and thrown to the elephants to be devoured, but 
they refused to touch it. In some cases persons con- 
victed of Treason were ordered "to be thrown to 
the elephants which had been taught to cut their 
victims to pieces". Their feet were cased in sharp 
iron instruments and the extremity of these were 
like knives. When a man was thrown to them, 
"they would wrap the trunk about him and toss him 
up, then take him with the teeth and throw him bet- 
ween their forefeet upon the breast". "If the order 
was to cut him to pieces the elephant would do so 
with his irons and then throw the pieces among 
the assembled multitude." 1 Thieves and robbers 
were dealt with with great severity. "If indeed" 
writes Jahangir in his Tuzuk, "in contemplation of 
future contingencies I have been sometimes led to 
deal with thieves and robbers with indiscriminate 
severity, whether during my minority or since my 
accession to the throne, never have I been actuated 
by motives of private interest or general ambition. 2 
A thief with a previous conviction was in the 
time of the Mughals liable to be executed. 3 Pu- 
nishment for his first offence was either a long term 
of imprisonment till repentance, or cutting off one 
hand (Qata-e-yad). 4 Manrique, a European traveller 

1 Ibn Batuta, p. 147. 

2 Compare Price, Tuzuk-e-Jehangiri, p. 96 ; Compare 
Manucci's remarks about Shahjahan. Storia I, 204. 

8 Mirat I, pp. 278-280; Storia I, p. 204. 
4 Mirat I, p. 278. 



PREVENTION OF CRIMES 237 

in the seventeenth century refers 1 to "columns of 
stone and lime in which the skulls of malefactors 
were enclosed as a warning of what was done in the 
name of justice and what was to be done in future. " 
Hamilton, another contemporary traveller, 
speaks 2 of the criminals "who flee for fear of condign 
punishment due to their crimes." 

Liability of Executive Officers 

The State not only punished the criminal, but 
also, in cases of robbery and theft, made the officers 
in charge of Law and Order, including the Governor, 
pay compensation to the complainant, (Storia II, 
pp. 461-62) (Briggs IV, p. 234), or in some cases paid 
it itself. A robbery was committed at the Dutch 
settlement and the complainants were indemnified 
by the State Treasury (Storia I, 204) the amount having 
been realised from the Governor himself. A Hindu 
merchant was plundered during the night in Mando. 
He proved his allegations in the Qazi's court and was 
paid compensation out of the fine realised by Govern- 
ment from the Police officer in charge (Briggs IV, p. 
234). It is said of Sher Shah that in cases of theft or 
robbery and murder he made the head man of every 
village responsible for either bringing the culprit to 
courts or for paying compensation (MS. K. C. C. 
Vol. I S. 85-87, 154. Elliot IV, p. 420) 

This combination of severe punishments of the 
culprit and exaction of compensation from the local 
responsible officials was so effective during the palmy 

1 Vol. II, p. 149. 

2 Vol. I, p. 132. 



238 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

days of Sultanate and Mughal Empites that, as Beve- 
ridge points out, 1 "robbery and theft formerly common 
were almost unknown, and the travellers slept securely 
on the highway, and the merchant carried his com- 
modities in safety from the Sea of Bengal to the moun- 
tains of Kabul and from Telingana to Cashmere." 
Manrique, a contemporary European traveller (1629- 
1643), writes about the reign of Shahjahan "It (i.e. 
good order) was seen not only in the abundance of 
the provisions but in the order and cleanliness of 
the streets and markets and in the peace and quiet 
maintained in them and also in the great justice 
and rectitude they observed whereby all lived safely 
with their property free from all cares as to the atten- 
tions of active and cunning thieves." Vol. II, p. 188. 
The same could be said about some of the rulers of 
other Muslim States also. Nevertheless there were 
times during the reign of Muhammad Tughlaq that 
journeys from one town to another could not be 
undertaken by people without proper guards, and 
robbers invariably infested 2 roads in spite of the 
ferocity with which Muhammad Tughlaq enforced 
the death penalty. 

Preventive Measures 

Disturbers of public tranquillity were evicted 
by courts from the locality, vide State vs. Mir Mur- 

1 Vol. I, p. 8 1 quoting Perish tah. Compare Terry, p. 354. 
"And this round and quick justice keeps the people there in 
such order and awe as that there are not many executions." 
Bernier does not give such a favourable account as Terry or 
Manrique at pp. 188-189, Vol. II. 

2 Compare Travels of Ibn Batuta, pp. 108, 156. 



PREVENTION OF CRIMES 239 

taza Waiz, Khafi Khan II, pp. 564-565. Shaikh Alai, 
a religious reformer, was banished by the King's court 
for preaching "Mahdism" (Briggs II, pp. 140-141). 
In one riot case the convicted persons were kept 
in prison till they showed signs of repentance 
(Ta zahur-e-asar-e-tobah) 1 (Lahori II, p. 22). Where 
a breach of public peace was apprehended orders 
corresponding to those passed nowadays U. S. 144 
Cr. P. C. could be passed, vide Ashraf vs. Shaikhs of 
Ghoryana, Baqiat, p. 29 or sometimes "dangerous" 
persons were called upon to execute "Bonds" (Muchal- 
kas) to keep the peace (Mirat I, p. 352, Baqiat, p. 39) 
or they were sent to prison (Mirat I, p. 321). 

If at the time of the Muharram or Holi festivals 
clashes occurred between Sunnis and Shiahs 2 or 
between Muslims and Hindus 3 "executive" orders 
were passed which in a way excluded the jurisdic- 
tion of the Qazis. In the reign of Emperor Baha- 
dur-Shah I, a suit was brought in the court of Qazi 
Khairullah, Bawahir vs. Havildar of Kalupur (Mirat 
II, p. 5) on the alleged cause of action that the Defen- 
dant had stopped the Plaintiffs from sacrificing a cow 
at the Idul Zuha. The Qazi refrained from dealing 
with the suit himself and referred it for disposal to 
the Governor, although the latter (Ajit Singh) was a 
Hindu. 

Police 

The main agency employed for the prevention 

1 Compare Mirat I, p. 348. 

2 Baqiat, pp. 29, 38, 39,40. 
8 Mirat II, p. 5 . 

16 



240 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

of crimes was a force of Barqandazes 1 (armed Police) 
and Sipahis (Manrique II, p. no) working under the 
command of the local Faujdars, Kotwals and Shiqah- 
dars. There was no Provincial head of Police or 
Provincial Police department. The Faujdar whose 
main duty, 2 as I have said elsewhere, was to maintain 
peace within his Sarkar, was provided with troops 
(Ahadis) in addition to the Barqandazes, and he was 
required to apprehend offenders and to assist the 
people in their fight against robbers and dacoits and 
to suppress riots (Lahori II, p. 21). All the Police 
stations (Thanas) in the Sarkar were under his con- 
trol. In case of necessity he could requisition help 
from the Faujdar of a neighbouring Sarkar in pre- 
serving order. 3 

Faujdars, as mentioned in a previous chapter, 
were sometimes stationed in Parganahs also (Br. 
Mus. MS. Or. 1779). They were called upon at 
the time of appointment to sign a covenant (Qubu- 
liat) agreeing to compensate the people within their 
charges in case of robberies. 4 

In the cities and large towns the work of the 
Faujdar was done by the Kotwal (De Laet II, p. 270) 
(Ain II. Jarrett, p. 41 (Br. Mus. MS. 1779). The 
relation between a Kotwal and a Faujdar may be 
compared with that existing between the Commis- 
sioner of Police, Bombay, and the Inspector Gene- 
ral of Police for the Province of Bombay or between 
the Kotwal of Hyderabad Daccan with the Inspector 

1 Lahori II, p. 21; Collections; Zawabit-e-Alamgiri f. 23. 

2 Ain II Jarrett, p. 40. 

* Bahadur Shah Namah MS. K. C. C. 

4 Br. Mus. MS. Or. 1779; Compare Storia II, 461-462. 



PREVENTION OF CRIMES 241 

General of Police Forces in H. E. H. the Nizam's 
Dominions. The Kotwal was officially subordinate 
to the Faujdar. Manucci says 1 that he was "subor- 
dinate to the Qazi" and received "orders from 
him" but it seems that the Qazi's control was only 
that of a modern Magistrate over a Police officer or 
perhaps because the KotwaPs judicial orders were 
appealable to the District Qazi. Dr. Nassau Lees 
in J, R. A. S., 1867, pp. 443-5 has referred to Abdul 
Malik, Kotwal of Delhi, as Governor of Delhi. This 
seems erroneous, though undoubtedly the Kotwal 
of the Capital who used to attend on the King regu- 
larly must have been a man of influence. We are told 
that during the Sultanate period once a Commander 
in Chief of the Army was selected for this post, (Zia 
Uddin Barni). Another Kotwal of Delhi was made 
the Chief noble of the Empire, Malikul Umera (Elliot 
III, p. 126). His duties may be enumerated as follows: 

1. To keep an eye on bad characters and to 
maintain peace and order. Storia II, p. 421. 

2. To arrest thieves and robbers. Storia II, 
p. 421. Fryer I, p. 246. 

3. To supervise the watchmen (Rahdars) of 
Saracs. 

4. To ride through the cities at night (Ovmgton, 
p. 137; Fryer I, p. 246). 

5. To guard public roads. (Mirat I, p. 326). 

6. To supervise transport arrangements with- 
in his area. (Ain-e-Akbari). 

7. To clear cities of brothels. (Fryer I, p. 246). 

1 Storia II, p. 421. 



242 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

8. To extinguish fire. (Fryer I, p. 246). 

9. To stop distillation of liquor (Storia II, p. 
421). 

10. To look after the customs at the seaports. 
(Manrique II, p. 137). In this respect a 
Kotwal must have been subordinate to 
a Qazi. He was also required to regulate 
market prices (Collections). 

11. To investigate the reports of offences to 
which 'Hadd' 1 and Ta'zir 1 applied (Khafi 
Khan II, p. 436). 

12. To watch movements of people and to 
investigate cases, if ordered by a Qazi. (Sto- 
ria II, p. 421). (Collections). 

13. To prevent dishonest persons from cheating 
people. To settle idle men to work. (Col- 
lections). 

14. To enforce curfew orders. (Collections). 

15. To maintain a register of local inhabitants. 
(Ain II, p. 42). 

1 6. To arrange for the burial of "la waris" (un- 
claimed) corpses (Collections). To make 
an inventory of the property left by missing 
persons. (Ain II, p. 42). 

17. To examine weights and currency. (Roe). 
During the Sultanate period the Mohtasib 
usually examined weights, but according 
to Sir Thomas Roe the Mughals gave this 
work to the Kotwal. 

1 See Chapter VII. Tendencies in Criminal Administra- 
tion. 



PREVENTION OF CRIMES 243 

1 8. To prevent slaughter of cattle in public. 
(Roe). 

19. To keep guard over the Treasury. 

20. To hold charge of the local lock-up (Fryer 
I, p. 245). The Kotwal of Delhi acted 
as Master of Etiquette at the Royal Court 
(Roe, p. 70). His appointment was made by 
the Emperor himself, but the inferior Kot- 
wals were selected by the Subahdar or Nazim 1 
(Mirat Supp. p. 153). Their letters of ap- 
pointment were issued by the Master of 
Ordnance (Mir Saman). Mirat Supp. p. 153. 
A Kotwal of a town during the Mughal 
period received a monthly salary of Rs. 213 
equivalent to about Rs. 650 of the present 
day. 

Staff 

Kotwals were generally supplied with a force 
of Sawars 2 mounted Police and foot constables 3 and 
armed men 4 (Barqandazes). The city or town was 
divided into wards, in each of which there was a 
'Chauki* (outpost) containing one horseman and 
twenty to twenty-five footmen to maintain peace 
(Storia II, p. 421). The Kotwals were assisted by 
Naibs or deputies who had no magisterial duties 
(MS. Fraser 157. Oxford). 

1 Mirat Supp. p. 153. 

2 Storia II, p. 421. 

3 Labor i II, p. 21; Manrique II, p. 137. 

Pyadah Mirat I, p. 334. Fryer calls him 'Lashkari'. I, 
p. 249. 

4 Zawabit-e-Alamgiri .23; Collections. 



244 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Shiqahdars. (Barn/, p. 337) (Br. Mus. MS. 6,599) 

Shiqahdars' main duty under Mughals was to 
help the collection of revenue and to "keep the ryots 
and the public contented" (Br. Mus. MS. 6,599). 
(Br. Mus. MS. Add. 22,831 f. 186). A Shiqahdar 
was an inferior officer compared with a Kotwal (Man- 
rique I, p. 425). 

Thanadars. (Br. Mus. MS. Or. 1779). 

The Parganahs were divided into Police Stations 
each comprising of a number of villages and known 
as Thajiahs, each under a Thanadar who had a force 
of infantry (Pyadahs) with him. The Thanadar 
seems to have been in every way the predecessor of 
the modern Sub-inspector of Police who is still called 
the Thanadar. The 'Police' force stationed in the 
'Chaukis' and 'Thanahs' was inspected by the King, 
the Governor, and the Faujdar, whenever they toured 
in the interior of the country. 

Nothing in the shape of Police Rules or Regu- 
lations for those days can be traced. The efficiency 
of the Force in all likelihood must have depended 
upon the personality of its officers. 

In the villages the head men Moqacldams or 
Patels or Chaudhris were required 1 to make one 
list of residents and another of new-comers whose 
movements were also to be ascertained more or 
less on the lines of modern lists A and B of the Indian 
Police. Abbas Khan thinks 2 that these head men 



1 MS. 154 Vol. I. K. C C, pp. 85-86. 

2 Ibid. 



PREVENTION OF CRIMES 245 

were careful to maintain order and prevent crimes 
within their territorial limits. 

Each village or group of villages had a watchman, 
(Chaukidar) who represented the Police in his area, 
while the head man, who "enjoyed honour and res- 
pect" among the people, may be said to have repre- 
sented the Faujdar. Like the Sheriffs of England, 
who were "responsible for the good government 
of the Boroughs under them", 1 the larger Land- 
lords or Zamindars were required to help the officers 
of the State in maintaining peace and collecting 
Revenue (MS. 370. I. O. L.). The Governor 
could give them grants of land, on condition of mili- 
tary service, 2 subject to the approval of the Emperor. 
These landlords or Zamindars were also known as 
Watandars (Farameen, p. 161) and were to be found 
in ever} 7 * Parganah. 

Watch and Ward 

The duties of the Police Officers in the cities and 
towns included patrolling the inhabited areas three 
times at night. 3 They were to arrest persons com- 
mitting or about to commit offences. 4 

People harbouring proclaimed offenders were 
prosecuted 6 and Newswriters or Waqayah Nawis 
were enjoined to announce widely the presence of 
alleged offenders in a locality. Preparation for dacoi- 

1 Compare Holdsworth History of English Law, I, p. 7. 

2 Tracts relating to the affairs of the East India Co. 1772- 
1773, pp. 3-4(1. O. L. Records). Lanepoole, Aurangzeb, p. 112. 

3 Ovington, p. 137; Fryer I, p. 246. 

4 Compare S. 109, Cr. P. C. in British India. 
6 Compare Aurangzeb V, p. 421. 



ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

ty was liable to severe punishment, and sometimes 
people convicted of this oflence were kept in prison, 
till they offered satisfactory assurance of future 
good conduct 1 (Habs bad at Ta'zir). In the time 
of Firoz Tughlaq 2 (1351-1387) stringent measures 
were taken to guard roads, and Sher Shah built 3 
'Saraes* or shelter houses at the outskirts of every 
town for travellers to stay at night and 'Rahdars' 
or watchmen were posted in each Sarae to guard the 
luggage and to watch the coming in or going out 
of strangers. The system was continued by the Mu- 
ghals (Manrique II, p. 100). (Storia I, p. 68). 

The Sultans and the Mughal Emperors frequently 
toured 4 the Kingdom to acquaint themselves with 
the general conditions of their subjects and of the 
conduct of their officers as well as the activities of 
lawless people. Balban tried two cases of oppres- 
sion by Governors on the spot, and sentenced one 
to death and the other to enslavement (vide State 
vs. Malik Faiz and State vs. Haibat Khan. Briggs 
I, p. 253). 

Surveillance 

There was no regular system of 'surveillance', 
until Aurangzeb issued his Farman 5 in 1672-1673 
A. D. directing that a person convicted of theft was 
to be kept in prison, till he showed signs of repent- 

1 Compare S. no, Cr. P. C. and S. 565, Cr. P. C. in British 
India. 

*Barni, pp. 578-582. 
8 Elliot IV, p. 420. 

4 Compare Price. Tuzuk-e-Jehangiri, p. 117. (Tr.). 

5 See Mirat I, pp. 278-283. 




A Prison Scene 



PREVENTION OF CRIMES 247 

ance (Ta asar e tobah zahir shawad) or that, if the 
accusation was not proved and there still remained 
suspicion against the accused, the Kotwal should 
keep an eye on him (o ra nigah darand) 1 . Rioters 
were also dealt with in the same way. 2 

In the reign of Jahangir (1605-1628) a dacoit 
with previous convictions who had been condemned 3 
to be trampled to death by an elephant resisted the 
elephant's attack and was granted a pardon, but was 
kept under surveillance. He then escaped from the 
place where he was ordered to live and was caught 
and executed. 

The Kotwal was required (Ain II, p. 41, Jarrett) 
to maintain a register of suspected persons and to 
keep a watch on their movements through spies. 
In State vs. Qazi Jalal Kashani and others when an 
accusation of Treason was not substantiated in court, 
Sultan Jalal Uddin Kliilji kept the accused persons 
under observation and later on banished 4 some of 
them from the country (Jila watan). 

Prison System 

There were jails (Bundi Khanahs) 5 in every im- 
portant place for persons sentenced to imprison- 
ment. In other places there were 'lock-ups' 8 . Pri- 
soners, who were considered specially dangerous, 

1 Mirat I, p. 283. 
2 Mirat I, p. 348. 

3 Elliot VI, pp. 346, 504. 

4 Compare Elliot III, p. 145. 

6 Compare Manrique I, p. 421, II, pp. 113, 326, Shams 
Siraj Afif, p. 509. Badaord I, p. 223. See Mundy Travels, 
p. 285. Vol. I. Indian Record Series. "Jail houses". 

6 Compare Mirat, I, pp. 282, 283; Manrique I, p. 422. 



248 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

were concentrated in forts like Gawalior, 1 Rohtas, 
Bharatpur, etc. under the direct control of the Central 
Government. 

There was no Provincial jail organisation o 
service. The control and supervision of Jails was 
vested in the Qazis and Kotwals. Where there 
were no Kotwals, the Thanadars were in charge. 
The Qazi was like the present District Magistrate 
in India, the regular official visitor (Hidayah, p. 336. 
Mirat I, pp. 278-283), but the superintendent was the 
Kotwal of the town (Fryer I, p. 245 ). Under-trial 
prisoners were placed in the custody of the Kotwal 
and he was responsible for their reaching Courts in 
time 2 . 

According to the author of Badshah Namah 8 
regular inspections of jails were made by the Kings 
and the Governors. A Governor was expected to 
visit the jails in his Province once a month. (MS. 
Add. 6580 f. io4a). We are not told whether he 
succeeded in doing so. The size of most of the Pro- 
vinces would render this unlikely. 

In the reign of Aurangzeb (1658-1707) emphasis 
was laid on the Qazis' inspection of jails. 4 

The jails were in the immediate charge of a chief 
jailor 5 (Daroghah). 

The food to both civil and crimina! prisoners 

1 Monserrate, p. 211. Storia I, p. 69. 

2 Compare Fryer I, p. 246. Terry, p. 366. 

8 Lihori I, p. 245. Compare Shams Siraj Afif, p. 509. 

4 Fatawa. Kitabul Qazi. Compare Hidayah, p. 336. 

5 Monserrate, p. 206. Compare Mahmud of Ghaznah, 
p. 150. Manrique I, p. 422. He was known as Amir ul Haras 
in Ghaznin. 



PREVENTION OF CRIMES 249 

was supplied by the State (MS. 370 I. O. L.) and there 
is no record of decree-holders being charged with 
the cost of feeding their debtors. 



CHAPTER IX 

THE WORKING OF THE JUDICIAL 
MACHINERY 

Court House 

The immediate successors of the Prophet held 1 
court in mosques where every person could approach 
them without hindrance. The Abbaside Caliphs 
erected separate buildings for their Qazis. The 
earlier Emperors of Delhi and the Mughal rulers 
did the same. 2 The Court buildings in the time 
of the Sultans were known as Darul Qaza (Barni, 
p. 580) or Darul Adi. The Mughals called them 
Adalat Khanah 3 or Kachehri 4 and erected them 
practically in every city and town. 5 These buildings 
were generally spacious and could accommodate 
the crowds 6 who sometimes gathered to hear sensa- 
tional trials. Many of the old "Kachehri" buildings 
which still survive in the United Provinces (India) 
have got mosques attached to them. 

The dais on which the Qazi took his seat was 
known as Majlis-e-Qazi (Fiqh). The Qazi sat on a 
carpetted floor with a large pillow (Gao takyah) at 

1 Compare Hidayah, p. 337. 

2 Compare (i) Ibn Batuta, p. 114; (2) Manrique II, pp. 159, 
189. 

8 Bernier (Oxford), p. 263. 

4 Mirat I, p. 282. The word is still in use in India. 

5 Holden. Mogul Emperors, p. 39 and Dow III, p. 411. 

6 Compare Khafi Khan. Vol. II, p. 258. 



WORKING OF JUDICIAL MACHINERY 25 I 

his back. 1 His actual seat was called 'Masnad-e- 
Qazi". The whole platform where the Qazi sat was 
raised and generally prominent. The Emperors had 
their Court building specially erected in one of the 
entrances to the Palace (Manrique II, p. 159). Shah- 
jahan, when holding trials, declined to sit on his 
costly peacock throne and preferred to sit on its 
simpler and unornamented substitute (Takht-e-Firosi). 
The paintings in the Bodleian Library, Oxford, of the 
court of Shahjahan show that a scale of equity (Mi- 
zan-e-adl) was prominently displayed. The Kotwal's 
court building was known as 'Chabutra.' 2 

Court Hours 

Court hours were generally announced by the 
Presiding officers themselves (Collections). They 
were not fixed 3 by the Emperor till about 1672, when 
Aurangzeb learnt 4 from the report of Waqae Nigars 
that the Courts in the province of Ahmadabad sat 
only on two days. He issued directions that the 
presiding officers should sit regularly on Saturdays, 
Sundays, Mondays, Tuesdays and Thursdays. On 
Wednesdays the Qazi-e-Subah was to sit with the 
Governor on his Bench, 2 and Friday could be enjoyed 
as a holiday. 

No definite information is available about the 
Turkish rulers but both European travellers and 
Persian historians have noted the punctuality with 

1 Compare picture of the court of Qazi Abdul Wahab. 
Storia III, p. 210. 

2 Mirat I, p. 282. 

3 See Diaries in Hyderabad Collections. 

4 Mirat I, p. 275. 



252 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

which the first seven Mughal Emperors sat in court. 
Colonel Dow, in his Enquiry, says 1 "Time had 
established into an almost indispensable duty that 
the Emperor with his assessors, the principal Judges, 
was to sit for two hours every day in the hall of justice 
to hear and decide cases. Shahjahan who took great 
delight in promoting justice frequently exceeded 
the usual time." 

The court hours fixed by Aurangzeb 2 were from 
two 'gharis' (hours) after sunrise to a little after 
midday. These hours seem to have been maintained 
both in the hot and cold weathers. Presumably 
this was also the time during the Sultanate period. 
Manrique records in i64o 3 that his own case was 
taken up by "the Judge" at "one o'clock in the morn- 
ing". This seems to have been either a special 
arrangement or a mistake in the text or the transla- 
tion, as no other writer has referred to such odd 
hours. The practice of some of the Mughal Em- 
perors was to sit in the Court at 7-30 a. m. 4 Accord- 
ing to Monserrate "everything that goes on" in Court 
was regulated clocklike. 6 

Court Vacation 

As Rae Bhara Mai has pointed out 6 there were 
not many cases for disposal in courts, and we hear 
nothing of regular court vacations. Bernier says 

*Vol. Ill, p. 395. 

2 Mirat I, p. 275. 

3 Vol. II, p. in. 

4 Alamgir Namah, p. 1079. 

5 Commentary, p. 211. 

6 Elliot VII, p. 172. Compare Bernier, p. 236. 



WORKING OF JUDICIAL MACHINERY 253 

that the "Kings of Hindusthan" seldom failed, even 
when in the field, to hold trials "the same as when in 
the capital/' and the custom was regarded as a matter of 
Law and duty and the observance of it rarely neglected 1 . 

Court Dress 

No dress seems to have been prescribed for the 
Qazis, but from the picture in Storia III, p. 210 it 
appears that the Qazis had an "aba" (gown) while 
sitting in court and a "top" like the modern 
wig was worn on the head. Since the dispensation 
of justice was considered a religious duty it seems 
likely that the Qazis must have adopted the Arabian 
dress which to this day 2 is worn in India by religious 
leaders on solemn occasions. 

Disposal of Business 

The disposal of judicial work by the Qazis or the 
Emperors may be estimated by a description of the 
trials given below: 

Civil Appeal 1500 A. D. Beveridge I, p. 102. 

Court Sultan Sikander Lodi, (1489-1517). 

"Two brothers, private soldiers, had, among 
other booty obtained during a siege, become pos- 
sessed of two large rubies of different shapes. One 
of the brothers, having determined to quit the ser- 
vice and return to his family at Dehli, the other 
entrusted him with his share of the plunder including 
one of the rubies, and told him to deliver it to his 

1 Travels, pp. 263, 360. Compare C.H. of India, Vol. IV, 
p. 182. 

2 The gown and the wig worn by Judges in British India 
are not much different from what the Qazis wore in those days. 



2J4 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

wife. The soldier who had continued to serve on 
returning after the war was ended, asked his wife for 
the ruby and was told that she had never seen it. 
The brother on the contrary declared that he had 
delivered it, and when the case was brought before 
the court, produced a number of witnesses who swore 
that they had seen him deliver it. The Judge, acting 
on this testimony, decided against the woman telling 
her to go home and give the ruby to her husband. 
Her home was thus rendered so uncomfortable that 
as a last resource she laid complaint before the King. 
He listened patiently to her statement and then sum- 
moned all the parties before him. The witnesses 
repeated their evidence and in order to strengthen 
it affirmed that they perfectly recollected the size and 
shape of the ruby which they had seen given. On 
this the witnesses were separated and a piece of wax 
being given to each of them as well as to each of the 
soldiers, they were told to mould it into the form of 
a gem. On examination the models of the soldiers 
agreed, but that of all the others differed. The 
King drew the inference that the soldiers alone had 
seen the ruby and the witnesses had been suborned 
to perjure themselves." 

The appeal was allowed. 

Widow vs. King Ghyas. Stewart, pp. 90-91. 

Court: Qazi Siraj Uddin Qazi-e-Subah. Bengal. 
(About 1490 A. D.) 

"One day, while the King was amusing himself 
in the practice of archery, one of his arrows by chance 
wounded a boy, the son of a widow. The woman 
immediately repaired to the tribunal of the Qazy, 



WORKING OF JUDICIAL MACHINERY 255 

Siraj-e-addeen, and demanded justice. The judge 
was confounded, and said to himself 'If I summon 
the King to my court, I shall run the risk of being 
disobeyed; and if I pass over his transgression, I 
shall be one day summoned before the court of God, 
to answer for my neglect to duty/ After much re- 
flection, he ordered one of the officers to go and 
summon the King, to answer the complaint of the 
woman. The officer, dreading to enter abruptly 
the palace with such an order, considered on some 
means to get introduced into the presence of the 
King. At length he ascended the minaret of the 
mosque adjoining the palace, and at an improper 
hour called the people to prayers. The King hearing 
his voice, ordered some of his guards to bring before 
him the man who thus made a mockery of religion. 
When the officer was introduced into the royal 
presence, he related the circumstance of his call to 
pray for the King and also concluded by summon- 
ing His Majesty to the Qazy's tribunal. The King 
instantly arose, and, concealing a short sword under 
his garment, went before the Qazy; who, far from 
paying him any mark of respect, said to him with a 
tone of authority, 'You have wounded the son of 
this poor widow; you must, therefore, immediately 
make her an adequate compensation, or suffer the 
sentence of the Law.' The King made a bow, and, 
turning to the woman, gave her such a sum of money 
as satisfied her: After which he said, 'Worthy Judge, 
the complainant has forgiven me/ The Qazy asked 
the woman if such was the fact and if she was satisfied, 
to which the woman having assented, was dismissed. 



256 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

The Qazy then came down from his tribunal, 
and made his obeisance to the King: who, drawing 
the sword from beneath his garment, said, 'Qazy, 
in obedience to your commands, as the expounder of 
the Sacred Law, I came instantly to your tribunal, 
but if I had found that you deviated in the smallest 
degree from its ordinances I swear that with this 
sword I would have taken off your head! I return 
thanks to God that matters have thus happily termi- 
nated, and that I have in my dominions a Judge w r ho 
acknowledges no authority superior to the Law'. 
The Judge taking up the scourge said, 'I also swear, 
by the Almighty God, that if you had not complied 
with the injunctions of the Law, this scourge should 
have made your back black and blue! It has been 
a day of trial for us both/ " 

The King was much pleased and handsomely 
rewarded the upright Judge. 

Civil Appeal. Storia I, pp. 199-200. 
Court Emperor Shahjahan, 1628-1658. 
"A youth wanted to marry a woman. The 
latter refused. He filed a suit in the court of the 
'Qazi of Agrah' alleging that he had illicit connec- 
tion with the woman who had promised to marry 
him. The Defendant denied the allegations. The 
Plaintiff on being examined by the Qazi described 
her body accurately having learnt details from an old 
woman. The Qazi got the woman examined and 
found the description correct. The Plaintiff's suit 
was decreed. Proceedings started on the Execution 
side, but the woman prayed for time and her request 
was granted. After a month she went to the house 



WORKING OF JUDICIAL MACHINERY 257 

of the youth (Plaintiff) and catching hold of his throat 
accused him of stealing her things while he was with 
her in her house. She took a complaint against him 
to the Qazi's court. The Plaintiff accused denied the 
charge and said, "I have never seen this woman before." 

While the proceedings in this case were going 
on the woman took a copy of this statement and pre- 
ferred an appeal to the court of Shahjahan. The 
Emperor admitted this statement made by the Res- 
pondent in a Criminal Court and allowed her appeal. 

The Qazi's decree was set aside and, on learning 
that the youth had obtained details about the appel- 
lant from an old woman, the Emperor ordered his 
prosecution for bringing a false case." 

Bail Appeal. MS. 370 I. O. L., MS. Raqaem- 
e-Keram K. C. C. f . 1 5 . 

Court Emperor Aurangzeb. 

The appellant was sent to the lockup on some 
charge details of which could not be ascertained. 
The following judgment was delivered: 

"The order sending the appellant to jail is illegal. 
He should be released forthwith. The case is trans- 
ferred to the Court of the Chief Justice for decision 
in accordance with Law so that justice should be done 
to everybody. By God's grace the Qazi is honest, 
pious and decides the disputes impartially." "An 
order of the Qazi must be obeyed." 

Miscellaneous Appeal against an order of a Go- 
vernor, Waqae Alamgir, p. 72. Ruqaat MS. 1344 
I. O. L. 

Court Emperor Aurangzeb. 

Judgment "This is an appeal against the order of 



258 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Khan Jahan Bahadur by the merchants whose horses 
have been confiscated. He (Khan Jahan) has forgotten 
the day of judgment and his own death which shall 
approach him soon. It seems he does not even fear 
the wrath of God and the disapproval of the Sover- 
eign" 

Civil Appeal. 

Court Emperor Aurangzeb. 

Judgment "The judgment in this case between the 
Kashmiris and Ibrahim Khan has not been properly 
written by Hafizullah Khan. He has not considered 
the consequences and has blundered badly. There is 
no meaning in getting the matter enquired through 
Dilawar Khan alone. This is why it has been said 
that the Qazi and Amin must make thorough and 
impartial investigation and should not decide the 
case on a mere admission or denial. They should 
not be guided by their personal whims. Such 
people have existed in the past and it seems the 
Devil is again overpowering their sense of dis- 
cretion." 

Case remanded for retrial. 

MS. Raqaem-e-Keram K. C. C f. 15. Br. Mus. 

Debt Case. 

Manucci vs. Portuguese. Storia III, pp. 128-129, 

Court Shafi Khan. Governor Karnatic. 

Manucci filed a plaint claiming recovery of debts. 
The court summoned the Defendant. The Parties 
stated their cases in court. The Defendant denied 
the claim on oath. The Plaintiff was called upon to 
produce evidence. Plaintiff filed documents and an 



WORKING OF JUDICIAL MACHINERY 259 

affidavit. The court did not know the language of 
the documents and sent the papers to the English 
Governor of Madras for translation. When the 
translation was received the court went through the 
documents and ordered that the case be made over 
to the English Governor of Madras for decision. 
The parties agreed. 

The Governor of Madras heard the arguments 
in a Bench consisting of himself and his Staff and, on 
the evidence that had already been produced, decreed 
the Plaintiff's suit. 

Murder Case. (Collections). State vs. Sulai- 
man Beg. 

Complaint of Nirman and widow of deceased. 

Court Saadat Khan. Qazi-e-Subah. Jaunpur, 
1680 A. D. 

judgment "The complainants alleged that the 
accused killed Bishnath when he was sleeping in his 
threshing floor. The parties were summoned. The 
complainants are absent and there is no one to pro- 
secute this case. The accused denies the allegation. 
The complainants were directed to produce evidence 
today, but there is none to support their complaint. 
The accused is, therefore, discharged, let a copy of 
the order be given to him." 

Theft Case. (Collections). State vs. Madari 
Faqir. 

Court Qazi of the District Parenda, South India, 
1670. 

Judgment "It is alleged that Madari Faqir entered 
the house of a widow at night. When she discovered 
his presence, she raised a cry for help. The police 



260 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

came up and arrested the accused, who was prosecuted 
for committing burglary. The accused denies the 
allegation and says that he had gone out to pass water 
when the widow shouted out and he himself went 
to her help when the police arrested him. As no- 
thing was found on the person of the accused I con- 
sider his case doubtful and acquit him. He should 
be released forthwith." 

Civil Suit. 1687 A. D. Baqiat, p. n. 

Court Qazi Ghulam Muhammad. Parganah 
Jais. 

Plaintiff: Saiyad D. Bahar. 

Defendant: Mst. Butul. 

Claim re-possession of 15 bighas of muafi land 
and injunction. 

Judgment "On Ziqad 12. 1099 A. H. (1687 A.D.) 
Saiyad Dan ibn Bahar ibn Ala Uddin presented a claim 
to the court of this humble servant of Shara' Qazi 
Ghulam Muhammad of Parganah Jais that the land in 
dispute was his madad-e-ma'ash and that the Defen- 
dant was obstructing him from using it. The Defen- 
dant on being questioned denied the Plaintiff's title 
to the land in dispute and alleged that it belonged to 
Saiyads of Saydanah. 

I accordingly order that as the Defendant has 
no justification in preventing the Plaintiff from 
enjoying his profits, she should refrain from interfer- 
ing with the Plaintiff's rights." 

Delay in Proceedings 

During the Mughal period instructions were 



WORKING OF JUDICIAL MACHINERY 261 

occasionally issued 1 by the Emperors to Judges 
to expedite trials. "Those who apply for justice" 
states one of Akbar's Ains "let them not be inflict- 
ed with delay and expectation. Let him object to 
no one on account of his religion or sect." 

Bernier, a contemporary traveller in the xyth 
century India, thinks that the suits were "speedily 
decided." 2 According to Terry, a European mis- 
sionary attached to the Staff of Sir Thomas Roe, the 
trials were "conducted quickly". Manucci says that 
the Emperor "causes the judgment he pronounces 
to be executed on the spot." 3 But, it seems, special 
emphasis was laid on the speedy decision of criminal 
cases. 4 In civil cases sometimes the proceedings 
took considerably more time. Abdul Wahab's civil 
suit was referred twice within the space of one year 
by the Qazi-e-Subah to Jahangir for orders on pre- 
liminary issues only, as the Defendant was a high 
personage of the Imperial Court (Tuzuk. 306 S. A.). 
The Governor of Kara disapproved of the delay in 
Hamiyat Ali vs. Gauri Shankar (Baqiat, p. 32), and 
Sikander Lodi is said to have taken to task his 
Chief Mir Adi for prolonging proceedings for two 
months in a suit which he could finish in one day. 
Elliot IV, p. 454, Kennedy I, p. no. The delay in 
civil suits may have been due to the emphasis laid 
in the Shara* on compromise (As sulh khairun). 
According to Khafi Khan, Chief Justice Abdullah 

1 Compare Ain II. Jarrett, p. 38; Mirat I, pp. 282-283. 

2 p. 236. Travels. Compare Manrique II, p. 189. 

3 III, p. 262. 

4 Compare Mirat I, p. 278. 



262 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

(1678-1690) was an over-scrupulous Judge and usual- 
ly tried to get the parties to compromise 1 (VoL II, 
p. 439). Bernier thinks 2 that compromise (Musaliha 
Baba) was often effected where the parties were poor. 
The Law, however, did not suggest any delaying of 
proceedings in order to get a compromise. Only 
the principle was stated. Individual rulers, 3 as Sir 
Henry Elliot observes, in most cases "never showed 
any delay" (Vol. p. 411). Fryer who visited India 
in the reign of Aurangzeb speaks of law suits being 
soon ended. 4 

Integrity of Judge 

In the decision of claims and disputes the Law 
expected of Qazis a high integrity. (Hidayah Book 
XX). In the following cases bribery w r as proved 
and the offenders were punished severely. 

1. State vs. Kotwal Said (Shahjahan's Court). 
Storia I, p. 197. The accused was executed 
in public. 

2. Deshmit vs. Faujdar (Alamgir's Court). MS. 
Dadkhota. Collections. 

3. Case. Dow III, pp. 334-335. 

4. Case of Qa2i Khair Uddin. Baqiat, p. 30. 
Sir William Foster in "India Office Records, 

1600-1640, p. 99" mentions a case where an English 
sailor purchased his release from the lockup by paying 

1 Compare Aurangzeb III, p. 85. 

2 p. 237. 

8 Compare Dow III, p. 334 "delay in the execution of 
justice (under the Mughals) subjected the Judge to the risk of 
compensating the aggrieved party for the loss". 

4 Edwardes and Garrett, p. 191. 



WORKING OF JUDICIAL MACHINERY 263 

money to the Kotwal. 

Manucci says that in one case the Qazi was 
suspected by him of having accepted a bribe (Storia, 
Vol. I, p. 198). 

We are also told by historians 1 that during the 
reign of Firoz Tughlaq a "clean up of the judiciary" 
was made. One Qazi-e-Subah who had been found 
guilty of corruption was executed in open court 
(Afif, p. 473). Sir Thomas Roe made a complaint in 
1615 to the Governor (Prince Khurram) against the 
"Judge of Alfandica" (Customs House). 

While it seems that some of the inferior Qazis 
or other judicial officers were not free from this vice, 
it can not be said that the whole judiciary was cor- 
rupt. 2 Sir Thomas Roe who was himself not satis- 
fied in one case had no hesitation in representing to 
the Governor that "all controversies between Eng- 
lishmen and the Officials of the town" should be 
laid before the Qazis of the place for speedy justice 
(pp. 476-477). 

Supervision by higher Courts 

The strict supervision over the officers maintain- 
ed by some of the Turkish 3 Sultans and the Mughals 4 
through news reporters (Waqae Nigars) and spies 
(Dow III, p. 397), or Barids or Khufyah Nigars 

1 Briggs I, p. 464. 

2 The remarks of Sir Jadunath Sarkar (Mughal Admn. 
I 935> P 2 ?) tnat all the Qazis of the Mughal period with a few 
honourable exceptions were notorious for taking bribes, are 
not based on any examination of bribery cases. 

8 Compare Barni, 284; Ameer Ali. Islamic Culture 1927, 
p. 8. 

4 Collections, p. 344. 



264 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

(Storia II, p. 421) kept the Rulers well informed 1 
about the conduct of their officials. If the news sent 
by these reporters showed any delinquency on the 
part of the officials, enquiry was made without delay. 2 
By holding courts regularly the Rulers were able to 
examine in appeals judgments of the inferior Qazis, 
and Emperors like Aurangzeb used their pen freely 
in comments. 3 Dereliction from duty or corrup- 
tion, whenever it came to the notice of the Rulers, 
was promptly punished. 4 Those found guilty were 
often punished with death. Manrique, a European 
traveller in 1632, observes "For unjust and corrupt 
Judges who do not comply with the demands of 
justice, they erect still loftier and more costly columns 
whereon they describe on bronze plates the name of 
the Judge and the fault for which his skull is con- 
fined here". Vol. II, p. 149. 

Taimur's maxim that a ruler must supervise the 
administration of Justice and keep himself well in- 
formed 5 (khabardari wa agahi) was scrupulously acted 
upon by the Sultans of the Slave dynasty, 6 Ala Uddin 
Khilji, Firoz Tughlaq, Sikander Lodi 6 and the first 
seven Mughal Emperors and European travellers 
and Persian historians give copious references to 

1 See Collections; Mirat Supp. p. 152; p. 218. 
Storia II, p. 331; Compare Mirat I, p. 336. 

2 Mirat I, p. 275; Anecdotes, p. 94. Br. Mus. MS. Add. 26, 
26,238 f. 14. 

3 Waqa-e-Alamgir, pp. 72, 80. 

4 State vs. Kotwal Said. Storia I, p. 197; Elliot IV, p. 411; 
Dow III, pp. 334-335- 

5 Tuzuk-e-Taimuri K. C. C. p. 64. 

6 See Chapter III. 



WORKING OF JUDICIAL MACHINERY 265 

their vigilance in this respect. 1 

Rae Bhara Mai, writing about the Qazis of Shah- 
jahan's reign, says that in general they endeavoured 
to work up to the standard demanded of them, lest 
it should be mentioned before the Emperor that 
justice had not been done. (Elliot VII, p. 172). 

A specimen report of a Waqae Nigar is given 
below: 

"Roznamchah Waqae Sarkar Ramgir Shawwal 
3." 5th year of accession (Aurangzeb). 

Khwajah Beg Faujdar, Qazi Muhammad Fazil 
and Laal Chand Diwan came to office at two 
hours after sunrise and took their seats in 
their respective Courts. The Faujdar 
announced that he would hold court on Sun- 
days, Mondays and Wednesdays during the 
next two weeks 

The officers sat for two hours and closing their 
courts went home" Collections (1663 A. D.) Some 
of these 'diaries' bear the following remarks of the 
Emperors. 

"Ba arz-e-ali raseed" (seen by our Exalted self). 

The following is an extract from an order passed 
by Aurangzeb in another case in which enquiries 
were started on the report of a Sawaneh Nigar (Br. 
Mus. MS. Add. 26,238 f. 14). 

"A perusal of the report of Amanullah, Mir 
Imarat (Engineer, Building Dept.), regarding the 

1 CompareMonserrate,p. 209; Tu2uk, p. 3; Rahbar-e-Daccan 
I 93 I > PP- 3> 1 9> Storia I, p. 203; Dow III, pp. XXV- VI, 334-5; 
Kennedy II, p. 38; Lancpoolc, p. 15; Khafi Khan II, p. 550; 
Barni, pp. 578-580, 39-43; Dr. Careri, pp. 222-223. 



266 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

property, groves and buildings and the wealth of 
the Qazi of Dehli showed that the allegations against 
the Qazi were correct. He has accordingly been 
dismissed and copy of the order has already been 

issued Qazi Haider is to be appointed in the 

vacancy". 

AuranggeVs Lega/ Reforms 

Among the long list of medieval rulers Aurang- 
zeb's name stands out prominently for introducing 
a series of reforms in the judicial administration some 
of which survive to this day. 

Firstly he started the system of "Remand" by the 
court to Police custody (Mirat I, pp. 278-282). The 
Kotwals were ordered to obtain a written order from 
the Qazi to keep a man under custody (Dast-khat-e- 
Qazi bare-e-dastawez khud giraftah mahbus sazand). 

Secondly Aurangzeb took particular notice of 
the delay which he marked in the disposal of work 
in some courts, and issued directions that all criminal 
cases must be tried without delay. 1 In this connec- 
tion he issued a detailed Farman 2 that prisoners were 
not to be taken into custody until prima facie legal 
evidence' (Subut-e-sharai) was available and that no 
prisoner was to remain in Jail without a lawful charge 
(hech kas be hisab dar qaed na manad). By a curious 
coincidence when Aurangzeb was issuing these regu- 
lations in India in 1679, ^ ie British Parliament was 
enacting the Habeas Corpus Act for England. Au- 
rangzeb disliked long adjournments. If after the 

i Mirat I, pp. 278, 338, 275. 
2 Br. Mus. MS. Add. 6580. 



WORKING OF JUDICIAL MACHINERY 267 

first date of hearing the case was not taken up, next 
day the Kotwal was required to send the undertrial 
prisoners daily to the courts till matters were decided 
(har roz anja be ferisand ke maamlah ra ba istejal 
faisal numayend) Mirat I, pp. 282-283. He himself 
set the example by sitting in his court daily. 1 

Thirdly the keepers of State records of rights 
were directed to permit the public to examine them. 2 

Fourthly government "Vakils" were appointed 
in every district 3 as mentioned previously. 

Fifthly Aurangzeb, in addition to his notable 
achievement of compiling the Fatawa-e-Alamgiri, 
framed written regulations (Zabtah) on every con- 
ceivable subject and required strict adherence 4 to 
every detail of them. 

Sixthly, according to Colonel Dow, 5 Aurangzeb 
reformed the system of Appeals. Since the time 
of Akbar the Emperors had tried cases personally 
and their interest in giving 'impartial' decisions used 
to attract litigants from far off comers of the Empire. 
Aurangzeb realising the expense and trouble to which 
such litigants were put in coming to the Capital, 
issued orders that parties should get their disputes 
decided by the local Qazi in the first instance, 6 and 
that the Laws of the Empire should be widely pro- 

1 Alamgir Namah, pp. 1076-1077; Mirat I, p. 257. 

2 Collections. Compare Dow III, p. XXVI "the Registers 
of the rents to be left open for the inspection of all that the 
people might distinguish extortion from the just demands of 
the Crown." 

8 See Chapter V, Lawyers. 

4 StoriaIII,p. 260; Waqae,pp. 31, 79, 108. Anecdotes, p. 132. 

5 Vol. Ill, p. XXXIII, p. 334. 

6 Mirat I, pp. 257-258. 



268 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

claimed 1 by the various State officials so that intend- 
ing litigants should understand their position before 
starting on a journey to the Capital. Civil Appeals 
were only admitted "beyond a certain sum", 2 and in 
criminal matters appeal against a Governor's Bench 
could lie by way of petition only. 3 

Aurangzeb appointed a court c Diwan-e-Maza- 
lim' 4 on the model of the Abbaside rulers 5 "to redress 
wrongs." It resembled the Court of Crown Cases 
reserved in medieval England. Its function was to 
admit petitions of Appeal. Sir Jadunath Sarkar 
thinks that the Diwan-e-Mazalim was the name of 
the court held by Aurangzeb on Wednesday. 6 

Aurangzeb took special care to see that his 
orders in appeal were conveyed to inferior courts 
without the least possible delay. The postal system 
was improved, and Captain Hamilton writes that one 
could send a letter from the Deccan to Delhi within 
eight days, Vol. I, p. 150. 

ILeniency 

Aurangzeb's keenness as a lawyer led him to the 
side of caution. As a Judge he translated the law 
of Shara, in the spirit it was meant (pp. 286-287, Mirat 
I) (Lanepoole, pp. 98-113). He became lenient in his 
sentences. He had started his reign by confirming 
the death sentences of his elder brothers on the one 

1 Mirat I, p. 258. 

* Dow III, p. XXVII. 

3 Compare Dow III, p. XXXIII. 

4 Sarkar (1935) p. 106. Compare Dow III, p. XXXIII. 
6 Compare Ameer Ali; Saracens, p. 422; J. R. A. S. 1911 

pp. 635-674. 

Sarkar (1935), p. 106. 



WORKING OF JUDICIAL MACHINERY 269 

hand and forgiving 1 all those who had fought against 
him in the war of succession on the other. He 
also issued orders that the first offender was to be 
treated leniently. If he committed the offence a 
second time he was to be put in jail. 

"Habs nigah darand ta asar toba zahir shawad." 
He would himself not inflict any sentence unless 
forced to do so 2 . Khafi Khan 3 also thought that 
in spite of his unrivalled abilities it was essential for 
him to pass sufficiently severe punishments. 

Manucci draws a gruelling picture of the state 
of law abiding spirit among his officers (Vol. Ill, 
p. 260), when he says: 

"The people revere him and hold him in the 
greatest respect. Yet in spite of his being himself 
imbued with this idea he assumes always great humi- 
lity in his attitude. For instance, if he sends orders 
to an officer at a distance in regard to any complaint 
that has been made of his conduct and then learns 
that the said order has passed unheeded and submis- 
sion in it has been refused, he betrays no wrath at 
such insubordination. All he says is (and that in 
the softest voice) that he is only a miserable sinner 
that there is no reason for astonishment if his orders 
are disregarded since every day those of God Him- 
self are neglected and repudiated. He does not for- 
get, however, to repeat his orders and adopt every 
exact means of getting them executed." While 
such attitude of humility would give credit to any 

1 Maharaja Jaswant was pardoned twice for his treachery. 

2 Alamgir Namah, p. 1078. 
8 p. 550, Vol. II. 



270 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

judicial temperament, I doubt if it had much to com- 
mend itself for its adaptability when the chief judicial 
officer of the realm was also the de facto supreme 
Executive head of the Government, and on him alone 
depended the maintenance of the State at a time when 
ideals of self-government were not known. Aurang- 
zeb's leniency may have been due to his over realisa- 
tion of the responsibilities which a ruler in an Islamic 
State bears on his shoulders (Alamgir Namah, pages 
1076-1077). It must be said, however, to the credit of 
Aurangzeb that he showed an extreme concern for 
the enforcement of a regime of law. With the effi- 
ciency of a modern secretariat head and with an un- 
limited capacity to work he was able to keep the 
machinery of law in perfect order within an empire 
which any single individual has hardly controlled 
so remarkably in the world for a complete half cen- 
tury. Aurangzeb's mastery of the details of admi- 
nistration and his super-human ability (Dow, Vol. Ill, 
p. XXVI) made the whole organisation a personal 
triumph for him. 

Conditions deteriorated in the time of Aurang- 
zeb's successors who were much inferior to him both 
in ability and industry. They ceased to administer 
justice in person, and people, who had been accus- 
tomed to flock to the Emperor's court to get redress, 
turned to other quarters. The result was that the 
Provincial Governors commenced to arrogate to 
themselves powers which were not theirs legitimately 
and to interfere in the administration of justice by 
trying cases which should have been left to the 
Qazis. As Alexander Dow observes, "the Courts of 



WORKING OF JUDICIAL MACHINERY 2JI 

Justice which the wisdom of the House of Taimut 
had established in the cities and various subdivisions 
of the Provinces were either annihilated or they lost 
their power under the summary despotism of the 
revolted Nabobs." Ill, p. CVII. 



18 



CHAPTER X 
SUMMARY AND CONCLUSIONS 

The superstructure of the Mughal administra- 
tion built by Aurangzeb continued, more or less in 
its original form, to exist till the death of Muhammad 
Shah in 1748. There were after him frequent changes 
in the Government which resulted in the weakening 
of the whole administrative machine. The people 
who, since 1526, had been used to a succession of 
strong and able rulers were left to find their own 
feet in a whirlpool of rebellious Governors, recalci- 
trant Chieftains and the marauding armies of rival 
claimants to power. 

The medieval State in India as elsewhere through- 
out its existence had all the disadvantages of an 
autocracy everything was temporary, personal and 
had no basic strength. The personal factor in the 
administration had become so pronounced that a 
slight deviation of the head from the path of duty, 
produced concomitant variations in the whole 'trunk'. 
If the King was drunk "his Magistrates were seen 
drunk in public". 1 

The vices of the Ruler became fashionable at 
court, from whence the whole body of the people 
was soon infected. 2 Barni deplores 3 the decline of 

1 Briggs I, p. 274. 

2 Compare Briggs I, pp. 388, 467. 
3pp. 382-383. 



SUMMARY AND CONCLUSIONS 273 

the institutions built up by Sultan Ala Uddin Khilji 
in the reign of his immediate successor, Sultan Qutub 
Uddin, who spent most of his time in wine and 
women. 

In fact, the whole history of medieval India shows 
that the administrative machinery functioning in the 
reign of one monarch was not necessarily the same in 
the reign of the others. 

The democratic ideal of government inculcated 
in the teachings of Islam was obscured in India. 
The very simplicity of despotism, its obvious im- 
partiality, "its prompt justice, its immediate severity 
against crimes, da2zled the eyes of the superficial 
and raised in the minds of the subjects a veneration 
little short of idolatry" which might have turned 
into real idolatry in the case of the Mughal Sovereigns 
if the practice of the Emperor sitting in his "Jha- 
rokah" for "Darshan" early in the morning had not 
been stopped by Aurangzeb. 

Despotism appeared in its most engaging form 
under the Imperial house of Babar. According to 
Colonel Dow "the uncommon abilities of most of 
the Princes with the mild and humane character of 
all, rendered Hindustan the most flourishing Empire 
in the world during two complete centuries." VoL 
III, p. XXIII. The succession of brilliant, efficient, 
and able rulers from 1526-1713, which had established 
"domestic tranquillity" in the country, resulted, how- 
ever, in the people resigning their power of initiative 
to some single individual amongst them and always 
looking up to that single individual for guidance. 
When that guidance was not forthcoming there was 



274 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

a collapse. The Mughal Emperors after 1750 could 
neither lead their people nor support their Judges, 
and the system so elaborately planned by Akbar and 
Aurangzeb broke down completely. 

Separation of Judicial and 'Executive f unctions 

Hitherto the judicial and the executive functions 
in the Muslim Indian State had been separate except 
that the King or his representative in the Province, 
the Governor, combined them in his person. The 
lower ranks, that is the Qazis and the executive offi- 
cers functioned independently of each other. The 
Qazis had no "executive" duties, and, as far as was 
possible, the executive officers were not invested 
with judicial powers. No titles were conferred on 
the Qazis. The same was the practice of the Caliphs 
of Islam. "Omar was the first ruler in Islam' 5 says 
Ameer Ali "to fix salaries for his Judges and to make 
their offices distinct from those of executive officers. 
The title of Hakim i.e. ruler was reserved for the Ka- 
zis," and according to Von Hammer "the Islamite 
administration even in its infancy" proclaimed "in 
word and in deed the necessary separation between 
judicial and executive power". 1 In the dominions 
of H. E. H. the Nizam, where certain Mughal tradi- 
tions still survive, the separation of judicial and exe- 
cutive functions seems to be exactly on the model 
adopted by the Mughal Emperors 2 except that neither 
the Subahdar nor H. E. H. hears appeals or tries cases. 

Under the Sultans the Qazis were independent 

1 Vide Ameer Ali, Saracens, p. 62. 
* Compare Dow, HI, p. LVIH. 



SUMMARY AND CONCLUSIONS 275 

of the Government and were considered to hold 
office under the Shara', with which no one, not even 
the Sultan, could interfere. Rulers like Muhammad 
Tughlaq and Firoz Tughlaq sometimes circumvented 
the Judges by investing their Wazirs with powers 
to try important cases, 1 but this was not the rule. 
When Sultan Mahmud Shah Bahmani (1500) pro- 
posed to indulge in the same practice, Qazi Sadr 
Uddin Sharif, his Chief Justice, went "on leave" out- 
side the Kingdom and refused to resume duties, un- 
less the Sultan gave him an undertaking that the 
powers of the Qazis would not be taken away in 
future (Briggs II, pp. 3 2 *-3 2 5)- 

By the time of Akbar (1560) the separation was 
in full force. When the Emperor or the Governor 
held trials the proceedings in his court were purely 
judicial. The Qazi-e-Subah was a member of the 
Governor's Bench, and any decision by the Governor 
either as a single Judge exercising original jurisdic- 
tion or as an appellate court, had to conform to the 
legal opinion expressed by the Mufti. 

delations between the Qa^is and the 'Executive*. 

The relations between the Qazis and the officers 
serving in the executive side were on the whole 
cordial. Much depended upon the personality of 
the ruler. In the reigns of Emperors like Firoz 
Tughlaq and Aurangzeb the decrees of the Law 
Court were obeyed and the Qazis were held in great 
respect. Mirza Kochak, Governor of Lahore, had 

1 Ibn Batuta, p. 146, State vs. Khwajah Ahmad Afif,p. 508. 



276 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

ordered a search to be made in the house of Qazi 
All Akbar of Lahore, who was suspected of murder- 
ing two slave girls. He preferred to commit suicide 
rather than to obey a summons by Aurangzeb to 
explain the killing of the Qazi by the Police in his 
attempt to prevent the search (Storia II, p. 254). 

No grounds are known for accusing the Qazis 
of subservience to the Governors, although instances 
have been recorded when they made efforts to please 
the Sovereign. Mir Faisullah Anjoo, Chief Justice 
of Bahmani Shah Mahmud, who \vas known to 
enjoy public confidence and a high reputation for 
honesty composed an ode in praise of the 
Sultan and was handsomely awarded. Similarly 
Qazi Abdul Wahab's acceptance of rewards 1 
from Aurangzeb has led some modern writers 2 
to think that the Chief Justice possessed no cons- 
cience, accepted bribes and managed to remain in 
office merely by pleasing the Emperor. This seems 
unlikely in view of the other evidence of the standard 
of efficiency required by Aurang2cb in every depart- 
ment of the administration. 3 It appears from his 
Ruqaat 4 (letters) that Aurangzeb held it to be a maxim 
that the complaint of a poor citizen against a highly 
placed individual was to be given credence 5 (bara-e- 
shahzada saza adam tahqiq ast. Waqae, p. 32). 

1 Alamgir Namah, p. 844. 

2 Sarkar (1935) p. 112. 

3 Compare (i) Dow III, pp. XXVI-XXVII (2) Anecdotes 
by Sarkar, p. 97. 

4 Waqae, pp. 32, 34, 70, 72, 80. 

6 Compare Dow III, p. XXXIII. "Their petitions when- 
ever they found access to the throne were heard with the atten- 
tion which a jealous prince pays to his own power, and there 



SUMMARY AND CONCLUSIONS 277 

None the less Qazi Abdul Wahab's own son who 
became Chief Justice refused to touch such rewards. 1 

AH Muhammad Khan quotes a case State vs. 
Prince of Gujrat, Mirat I, p. 49, where the son-in-law 
of the King was accused of murder and the Qazi who 
tried the case, after allowing Qisas, himself took his 
judgment to the Sultan for announcement or 
approval. 

Manucci tells us of a Kotwal who arrested him 
on a charge of theft and would not accept bail be- 
cause of the hostility of the outgoing Governor 
(Amin Khan), but became anxious to set him free 
when news arrived that Amin Khan's successor 
Fidae Khan was his friend (Storia II, p. 198). Simi- 
larly the chief Mir Adi of Sultan Sikander Lodi 
(1489-1517) kept an ordinary case hanging on in his 
Court for two months and on a reprimand from the 
Sultan disposed of it the same day. (Kennedy I, 
p. no). 

Qa^is and the Ru/er 

There are more instances than to the contrary 
proving that the subordination of the Qazis to the 
King as Chief Judge of the realm did not impair 
their independent position in the State, vide Widow 
vs. King Ghyas, Stewart, pp. 90-91; Qazi-e-Subah vs. 
Governor in Sadiq vs. Shakur, Sarkar V, p. 421 ; State 

are many instances in which the Governors of Provinces have 
been severely punished for an act of injustice to a poor peasant. 
Never to forgive oppressions against the helpless and low was 
an established maxim among all the Princes of the house of 
Timur." 

1 Compare Sarkar (1935) p. 112. 



278 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

vs. Brahman, Stewart, p. 410; State vs. Yaqub and 
Nairn, Briggs IV, p. 519; Hamid Uddin vs. Prince 
Kam Bux, Khan II, pp. 43 6-43 y 1 . 

The order issued by the Emperor Aurangzeb 
and referred to by Sarkar directing the Qazis of 
Ahmadabad to be present in the Court of the Gover- 
nor on Wednesdays was for their sitting on his Bench 
as Judges and not for attending him 2 as the executive 
head of the Province. No instance has come to my 
notice where the Ruler removed any Qazi on the 
ground that he gave an inconvenient decision. No 
harm was done to the Qazi who declined to favour 
Sultan Muhammad Tughlaq in his libel suit against 
Shaikhzada Jami, although later on the Sultan executed 
the defendant without a trial (Badaoni I, p. 240). 
Conversely the removal of Qazi Shamsuddin Mehr, 
as mentioned before, was the result of a successful 
appeal against his judgment. It seems to me that 
religious sentiment was a most potent influence on 
public opinion in medieval India and that every 
ruler who strove to live up to its standards (impartial 
justice being one of the essentials) was supported 
by the people. 4 The tribunal of Justice was a popu- 
lar forum of appeal to the people to accept the sover- 
eignty of a particular aspirant 5 to the throne. 

It seems inconceivable that the despotic rulers 

1 Also compare Briggs II, pp. 322-325; Barni, p. 580; Mirat 
I, p. 248; Al Qaza fil Islam, p. 22. 

2 Mirat I, p. 275. 

8 Elliot II, pp. 339-340. 

4 See State vs. Qazi Jakl Kashani. Elliot III, pp. 144-145. 
Compare remarks by Barni, pp. 39-43; pp. 578-580; Shams Sira] 
Afif, pp. 505-510. 

6 Compare Elliot IV, p. 116. 



SUMMARY AND CONCLUSIONS 279 

could have ever deliberately perpetrated acts of 
injustice upon their subjects by punishing or slighting 
upright Judges, if they were at all anxious to main- 
tain their position intact. In fact, the downfall of the 
Mughal Empire started when the Emperors were no 
longer able to uphold individual rights or to do 
justice between man and man, and when their subor- 
dinates became too powerful as against the decrees 
of the courts. 

Disintegration of the Mughal "Empire 

Aurangzeb had, in the words of that distin- 
guished British civil servant, Colonel Dow, left a 
completely settled Empire at his death. Its disinteg- 
ration commenced in the reign of Muhammad Shah 
(1719-1748), who is said to have once thrown an 
urgent report of an important conspiracy into a barrel 
of wine (in dafter-e-be mani gharq-e-ma-e-nab ula) as 
useless bother, and did not recover from the effects 
of his orgy till two days after. 

The scramble for power that set in in India after 
the death of Muhammad Shah in 1748 resulted in 
chaos. The regular course of Justice was every- 
where suspended, and every man exercised the func- 
tions of a Judge who had the power of compelling 
others to submit to his decisions. 1 From 1750 
A. D. onwards there were five 'puppet* Emperors, 
who were quite incapable of exercising the control 
necessary to preserve the vast Empire left by Aurang- 
zeb. 

1 Compare I. O. L. Records H. Misc. 352, p. 37. 



280 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

In the Muslim India which remained, the judi- 
ciary became merged in the executive in a manner 
always discouraged by Islam and the early Caliphs. 
The Faujdar and the Zemindar, whose judicial func- 
tions had been limited to what are at present called 
'security* cases, were authorised by the Governors 
(who had themselves assumed the powers of an 
Emperor in their Subahs) to try practically every 
kind of case. 1 The seventh report of the Committee 
of Secrecy appointed by the House of Commons 
shows 2 how corrupt these officers functioning as 
Courts became. They invented a variety of new 
Exactions from the litigants and established a mode 
of compromise for practically all criminal offences. 
The Chief Qazi of the Province of Bengal was rele- 
gated to an inferior position 3 and in effect ranked no 
higher than a dignified Mufti in the court of the Go- 
vernor's Daroghah. 4 The result in Bengal was 
a deterioration of the whole system. "Abuses" 
wrote an English official in 1772 "in the administra- 
tion of Justice were to be imputed rather to the 
corrupt principle of the Muhammadan and Gentoo 
(Hindu) Judges than to any defects in the Law or in 
the regulations of the courts" 6 "The Qazi's 

1 The universal practice in Northern India of referring 
to every kind of Criminal Court procedure as 'faujdari' evidently 
dates from those days. 

2 Compare Holwell's letter L O. L. Rec. 529, pp. 297, 301, 
340. 

3 Compare I. O. L. H. Misc. 352, pp. 34, 38. 

4 Compare I. O. L. Records. Range A. Vol. 19. Report 
of the Committee of Circuit 1772, pp. 371-372. 

6 Compare I. O. L. Records. Range A. Vol. 19. Report 
of the Committee of Circuit 1772, pp. 371-373. 



SUMMARY AND CONCLUSIONS 28 1 

courts seemed to be formed on wiser maxims and 
even on more enlarged ideas of justice." 1 

East India Company as Diwan 

Such was the state of affairs when the East India 
Company was appointed Diwan of the Subah of 
Bengal in 1765 by a Royal Farman. dive, the first 
administrator under the Company, met with little 
success in his efforts to restore the "old prestige of 
Government". His successor, Warren Hastings, rea- 
lising the limitations imposed by the Farman on the 
Company, felt disinclined to foist "English ideas 
on a people who were not used to them." In his 
dispatch to the Court of Directors dated 3. XI. 1772 
(Home Misc. Records 529, p. 320) he wrote : 

"We have endeavoured to adapt our Regulations 
to the manners and understandings of the people and 
the exigencies of the Country, adhering, as closely as 
we are able, to their ancient usages and institutions." 

There was no other way possible, as the de jure 
Sovereign was still the Mughal Emperor, and the peo- 
ple ow r ed allegiance to him, while the East India Com- 
pany had limited administrative rights only. 2 

The continued corruption of the lower ranks 
of judicial officials and the consequent injustices pre- 
vailed upon Lord Cornwallis to take upon himself 
the responsibility of separating 3 the judicial from the 
executive functions in 1793, so far as the territories 

1 Compare I. O. L. Records. Range A. Vol. 19. Report 
of the Committee of Circuit 1772, pp. 371-373. 

2 Compare Anglo -Muhammadan Law by Wilson, pp. 25-26. 
Letter of Warren Hastings. 

3 Smith, Oxford History of India, pp. 570-571. 



282 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

under the management of the East India Company 
were concerned. But it seems that the class of offi- 
cers recruited for the ideal form of judicial adminis- 
tration did not bring any particular credit 1 to the 
system. There were other financial difficulties and 
the old arrangements were revived in 1835. 

Since the assumption of direct responsibility by 
the British Crown drastic measures have been taken 
to deal with any defect of the judicial system which 
has appeared from time to time to hinder the dis- 
pensation of justice. No popular grievance what- 
soever has been voiced so far as the administration 
of justice in modern India is concerned. The 
"popular" cabinets themselves, with the excep- 
tion of the U. P., have not shown any inclina- 
tion to introduce any changes into the present day 
organisation of the magistracy and the judiciary. 
What the modern system has achieved in India can 
be fairly estimated from the following speech deli- 
vered by the late Sir Austen Chamberlain while 
proposing the toast of the English Bench and 
Bar: 

"The longer I live, the more profoundly grate- 
ful I am that I was born a citizen of this free country. 
We are free people, we govern ourselves. We can 
think our own thoughts if we maintain decency and 
courtesy we can express them freely. Our liberties 
remain and grow stronger as they perish or wither 
away elsewhere, and of all the British institutions to 
which we owe our liberties there is none to which 

1 Compare Smith. Oxford History of India, p. 571. 



SUMMARY AND CONCLUSIONS 283 

we have a greater debt not even to Parliament itself 
than British justice and the British Courts of 
Law." 

(The Times 1-2-1937). 



APPENDICES 

A. The Sultans and the Badshahs of Delhi. 

B. Bibliography. 

Dow's Translation of Farmans Appointing Qazi 
and Kotwal. 

C. Criminal Regulations of Aurangzeb (Br. 
Mus. MS. Add. 6580). 

D. Letters of Appointment. 

i. 

1. Farman of Muhammad Shah (1719) con- 
firming Shah Muhammad Raza Qazi of Parganah 
Jalesar, Sarkar Akbarabad. 

2. Farman of Muhammad Shah (1742) appoint- 
ing Saiyad Abrarullah Qazi of Parganah Deoband, 
Sarkar Saharanpur. 

3. Farman of Ahmad Shah (ist year of acces- 
sion) confirming Qazi Razaullah in his appointment 
of Qazi of Parganah Kunwar, Sarkar Shahjahanabad. 

4. Farman of Muhammad Adil Shah of Bijapur 
1659 A. D. (approx.) appointing Muhammad Ghu- 
lam Husain Qazi of Parganah Rewar-Kandah. 

2. Darogha-e-Adalat 

Farman of Muhammad Shah (1722) appointing 
Saiyad Muhammad Murad Daroghah-e-Adalat Par- 
ganah Haveli, Sarkar Sambhal. 



APPENDICES 285 

3. Vakil 

Vakalat Namah in favour of Saiyad Mutad bin 
Saiyad Yar Muhammad 1735 A. D. 

4. Zemindar 

Farman of Ahmad Shah (yth year of accession) 
appointing Bahadur Khan as combined Faujdar and 
Zemindar of Parganah Tharao, Sarkar Patan. 

5. Head Man 

Farman of Aurangzeb (1706) appointing Mu- 
hammad Turab Chaudhri of Parganah Manoi, Sar- 
kar Lucknow. 

6. Mohtasib 

Farman of Muhammad Shah (1746) appointing 
Razaullah Khan Mohtasib of Parganah Soinpat, 
Sarkar Shahjahanabad. 

E. List of Qazis of Parganah Jais Sarkar Ma- 
nakpur. (i 5 65-1 883). 



APPENDIX A 

SLAVES 

The Sultans Year of Accession 

Qutub Uddin Aibek . . . . . . . . 1206 

Aram Shah . . . . . . . , . . 1210 

Shams Uddin Iltutmish .. .. .. 1211 

Rukn Uddin Firoz . . . . . . . . 1236 

Sultan Raziah . . . . . . . . . . 1236 

Muiz Uddin Bahram . . . . . . . . 1240 

Ala Uddin Masud 1242 

Nasir Uddin Mahmud . . . . . . 1246 

Ghyas Uddin Balban . . 1266 

Muiz Uddin Kaiqubad . . . . . . 1287 

KHILJIS 

Jalal Uddin Firoz . . 1290 

Rukn Uddin Ibrahim 1296 

Ala Uddin Muhammad . . . . . . 1 296 

Shihab Uddin Umar 1316 

Qutb Uddin Mubarak .. 1316 

Nasir Uddin Khusro 1320 

TUGHLAQS 

Ghyas Uddin Tughlaq . . . . . . . . 1320 

Muhammad bin Tughlaq . . . . . . 1325 

Firoz Shah .. .. 1351 

Ghyas Uddin Tughlaq II 1388 



APPENDICES 287 

Abu Bakr Tughlaq .. . . . . .. 1389 

Nasir Uddin Muhammad . . . . I 39 

Sikander . . .. . . .. .. 1394 

Mahmud Tughlaq 1394 

Nusrat Shah . . . . . . . . . . 1396 

Mahmud Tughlaq . . . . . . . . 1399 

LODIS 

Daulat Khan Lodi 1414 

SAIYADS 

KhLzr Khan . . . . . . . . . . 1414 

Muiz Uddin Mubarak . . . . . . 1421 

Muhammad . . . . . . . . . . 1434 

Ala Uddin Alam Shah . . . . . . 1444 

LODIS 

Bahlol Lodi 1451 

Sikandet Lodi 1489 

Ibrahim Lodi . . . . . . . . . . 1517 

Suns 

Sher Shah .. .. .. .. .. 1540 

Islam Shah . . . . . . . . . . 1545 

THE BADSHAHS 

Babar . . . . . . . . . . . . 1526 

Humayun .. .. .. .. .. 153 

Humayun .. .. 1555 

Akbar 1556 

Jahangir . . . , . . . . . . 1605 

19 



288 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Shahjahan 1627 

Aurangzeb 1658 

Bahadur Shah 1707 

Jahandar Shah .. 1712 

Farrukh Siyar 1713 

Rafiud Darajat .. 1719 

Muhammad Shah 1719 

Ahmad Shah 1748 

Alamgitll 1754 

Shah Alam II 1759 

Akbar II 1806 

Bahadur Shah II 1837-1857 



APPENDIX B 

BIBLIOGRAPHY 

A. Manuscripts 

Adabul Harb. Br. Mus. MS. Add. 16853. 

Adab-e-Alamgiri. Br. Mus. MS. Or. 177. 

Akhbar-e-Darbar-e-Mualla. R. A. S. London. 
Arzdasht. Br. Mus. MS. Add. 16859. 

Baqiatus Salehat. In the author's library. 

Basain us Salatin. Br. Mus. MS. Add. 26269. 

Chahar Chaman. Br. Mus. MS. Or. 1892. 

Collections of Diaries. Diwani Office Hyderabad 

Deccan. 
Dastural Amal. Br. Mus. MS. Or. 1690. 

Dasturul Amal-e-Shahja- Br. Mus. MS. Add. 6588. 
hani. 

Dasturul Amal-e-Aurang- Br. Mus. MS. Add. 6598. 
zeb. 

Dasturul Amal-e-Aurang- Br. Mus. MS. Add. 6599. 
zeb. 

Dasturul Amal. Br. Mus. MS. Or. 2026. 

Dastur. Br. Mus. MS. Add. 6586. 

Dasturul Amal. Br. Mus. MS. Or. 1779. 

Dasturul Amal Adalatha- MS. 2907 I. O. L. 
e-Mutaalliqah. 

Dasturul Amal-e-Shahen- Br. Mus. MS. Add. 22831. 
shahi. 

Dasturul Quzat. MSS. 1601, 1602 I.O.L. 

Fatawa-e-Jahandari. MS. 1149 I. O. L. 



290 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Fatawa-e-Qazi Khan. MS. 1643 I- O- L. 

Fiqh-e-Firoz Shahi. MS. 2987 I. O. L. 

Futuhat-e-Firoz Shahi. MS. Or. 203*9 Br. Mus, 

Fuyuzul Qawanin. MS. Lucknow. 

Hadiqatus Salatin. Br. Mus. MS. Add. 6542. 

Ikhtyar. Br. Mus. MS. 22714. 

Insha. Br. Mus. MS. Add. 7689, 

9697. 

Istilahat. Br. Mus. MS. Add. 6603. 

Kalimatut Tayyebat. Br. Mus. MS. Add. 

26238. 

Lubbut. Tawarikh-e-Hind. Br. Mus. MS. Add 26251. 

Maasir-e-Jahangiri. Br. Mus. Or. 171. 

Makatib-e-Allami. Br. Mus. MS. Add. 6548. 

Mirat-e-Ahrnadi. Br. Mus. MS. Add. 6580. 

Miratul Istilah. Br. Mus. Or. 1813. 

Raqaem-e-Keram. MS. K. C. C. 

Ruqaat-e-Alamgiri. Br. Mus. MS. Add. 26239. 

Ruqaat-e-Alamgiri. MS. 1344, 3301 I. O. L. 

Sharhe Adabul Qazi. MS. 1514 I- O. L. 

Sharhe Manasib. Br. Mus. MS. Or. 1906. 

Sulukul Muluk. Br. Mus. MS. Or. 253. 

Sulukus Saltanath. Br. Mus. MS. Or. 254 

Tabaqate Nasri. Br. Mus. MS. Or. 18. 

Tajul Maasir. MS. K. C. C. 

Tarikh-e-Daudi. Br. Mus. MS. Or. 197. 

Tarikh-e-Shahjahani. Br. Mus. MS. Or. 174. 

Tarikh-e-Sher Shahi. MS. K. C. C. 

Zafar Namah Alamgiri. Br. Mus, MS. Or. 1640. 

Zakhiratul Muluk. Br. Mus. MS. Add. 7618. 

Zakhiratul Muluk. MS. K. C. C. 

Zawabit-e-Alamgiri. Br. Mus. MS. Or. 1641. 



APPENDICES 

B. Publications 



Abdul Qadir Mulla Al Ba- 
daoni. 

Abdur Razaq, Samsam-ud- 
Daulah. 

Abdus Salaam Nadvi. 
Abul Fazl. 

Abu Turab. 
Abu Yusuf. 

Afif, Shams Siraj. 

Ahmad, Nabi. 
Al Beruni. 

AJi Muhammad Khan. 
Amedroz H. F. 

Ameer All, S. 



Amir Khusro. 



Arnold, Sir Thomas. 



Baillie, N. 



291 



Tawa- 



Muntakhabatut 
rikh Bib. Ind. 

Maasirul Umara Bib. 
Itid. 

Al Qaza fil Islam, Azam- 
garh. 

1 . Ain-e-Akbari Bib. Ind. 

2. AkbarNamahBib.Ind. 

Tarikh-e-Gujrat Ed. Sir 
Denison Ross. 

1. Kitabul Kharaj. 

2. Kitab Adabul Qazi. 

Tarikh-e-Firoz Shahi Bib. 
Ind. 

Waqa-e-Alamgir. 

Tarikhul Hind Tr. by 
Dr. Sachau. 

Mirat-e-Alimadi, Baroda. 

On Mazalim Jurisdic- 
tion J. R. A. S. 1911. 
pp. 633-657. 

1. A Short History of 
the Saracens. 

2. Spirit of Islam. 

3. Mahomedan Law. 

1. Khazain ul Futuh. 

2. Qeran us Saadaen. 

1. Preaching of Islam. 

2. Legacy of Islam. 

3. Islamic Faith. 

i. Digest of Moohum- 
mudan Law. 



292 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 



Banerjea, P. 
Batni, Zia Uddin. 

Bashit Uddin K. B. 
Beni Prasad. 

Bernier, F. 
Beveridge, H. 
Bhara Mai Rae. 

Briggs, W. 
Browne, E. G. 

Cambridge History of 
India Vols. I, ni-IV. 
Colebrooke H. 

Dodwell H. 

Dow Alexander. 

Dutt S. 

Edwardes and Garett. 

Elliot, Sir Henry. 

Elphinstone M. 

Encyclopaedia Britannica 

Encyclopaedia of Islam 
Vol. II. 

Erskine W. 

Faruki, Zahir Uddin. 



2. Moohummudan Law 
of Sale. 

Public Administration 
in Ancient India. 

Tarikh-e-Firoz Shahi 
Bib. Ind. 

Farameenus Solatia. 
History of Jehangir. 
Oxford. 

Travels, Oxford. 
History of India. 

Lubbut Tawarikh-e- 
Hind. 

Rise of the Mahomedan 
Power in India. 

Literary History of Per- 
sia. 



Hindu Courts T. R. A. S. 
n, p. 166. 

Nabobs of Madras. 
History of Hindustan. 
India Past and Present. 
Mughal Rule in India. 
History of India 8 vols. 

History of India 1857- 
1905. 



History of India. 

Aurangzeb and his 
Times. 



APPENDICES 



Fatawa-e-Qazi Khan, 
Fatawa-e-Alamgiri. 
Finch, W. 
Foster, Si William 



Fryer. H. 

Gibb, H. A. R. 
Ghoshal, U. 

Grady, S. G. 
Guest, R. 

Hamilton 
Hamilton, Capt. 

Hawkins, W. 
Hazaqat Khan. 
Holden, E.S. 
Husen, W. 



Ibn Batuta. 
Ibn Hasan. 

Ishwari Prasad. 
Jayaswal, K. P. 

Jones, Sir William. 



Lucknow. 
Calcutta, Lucknow. 
Travels (Foster). 

1. India Office Records 
list 1600-1640. 

2. Embassy of Sir Tho- 
mas Roe. 

Travels Tr. Hakluyt 
Society. 

Ibn Batuta (Translation). 

A History of Hindu 
Political Theories. 

Institutes of Hindu Law. 

Governors and Judges 
of Egypt Gibb Mem. 

'Hedaya' edited by Grady. 

A New Account of East 
Indies. 

Travels, Oxford. 
Kitabul Ikhtyar, Calcutta. 
Mogul Emperors 
Administration of Justice 

during the Muslim Rule 

in India. 

Rahila, Travels Tr. by 
Lee. 

The Central Structure 
of the Mughal Em- 
pire, Oxford. 

Medieval India. 

A Basic History of Hin- 
du Law. 

(Translation of) Manu 
Samhita. 



294 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 



Ka^im, M. 
Kennedy, P. 

Khafi Khan. 

Khaldun Ibn. 
Khuda Bux, S. 

Lahori, A. H. 
Lanepoole, S. 

Maine, Sir Henry. 
Manucci, N. 

Manrique, S. 
Marshall, J. 

Maqrizi 

Markby, Sir William. 

Mawardi Al 
McDonald, D. B. 
Macnaghten, Sir William 

Minhajus Siraj. 

Mohammadullah S. Jung 
Monserrate, Father 
Moreland, W. H. 



Alamgir Namah Bib. Ind. 

History of the Great 
Moghuls. 

Muntakhabat ul Lubab 

Bib. Ind. 
Moqaddimah Tarikh. 

Orient under the Ca- 
liphs. 

Badshah Namah Bib. Ind. 

Aurangzeb, Rulers of 
India series. 

Village Communities. 

Storia du Mogor R.A.S. 
London 

Travels Tr. Hakluyt 
Society. 

Diary of, edited by Sir 
Shafaat Ahmad Khan. 

History, 2 Vols. 
Hindu and Mahomedan 
Law. 

Ahkamus Sultanyah. 
Muslim Theology. 

Principles and Precedents 
of Mahomedan Law. 

Tabaqate Nasiri Tr. by 
Raverty. Bib. Ind. 

Administration of Justice 
of Muslim Law. 

Commentary Tr. by Hoy- 
land and Banerjea. 

1. Akbar to Aurangzeb 

2. India at the death of 
Akbar. 



APPENDICES 



295 



Nawab Mirza Yar Jung. 

Nawawi, Imam. 
Nazim, M. 
Nicholson, R. A. 

Nizam Uddin. 
Orme, R. 
Ovington. 

Owen, S. J. 
Paelsart, J. 
Price, D. 

Qanvmgo, Prof. 
Quran. 



Rahim, Sir Abdur. 

Roe, Sir Thomas. 
Ross, Sir Denison. 
Saleh, K. 

Saqi, Mustaid Khan. 
Sarkar, Sir Jadunath. 



Saxena, B. P. 
Shibli, Maulana. 



Hind Aurangzeb ke Ahed 
men. 

Minhajut Talebin. 
Mahmud of Ghazna. 
A Literary History of the 
Arabs. 

Tabaqat e Akbari. 

Historical Fragments. 

A Voyage to Surat. Ed. 
by H. G. Rawlinson. 

Fall of the Mogul Empire. 

Jahangir. 

Tuzuk-e-Jehangiri (Trans- 
lation) (Memoirs). 

Sher Shah. 

1. Tr. by Moulvie Mo- 
hammad Ali. 

2. Tr. by A. Yusuf Ali 
Part I. 

Muhammadan Jurisprud- 
ence. 

See Foster. 

Islam. 

Amal-e-Saleh Bib. Ind. 

Maasir-e-Alamgiri Bib. Ind. 

1 . History of Aurangzeb. 

2. Anecdotes of Au- 
rangzeb. 

3. Mughal Administra- 
tion, 1920, 1935. 

Shahjahan. 

1. Risael-e-Shibli. 

2. Al Faruq. 

3. Tuzuk-e-Jahangiri. 



296 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

Sijistatii, Abi Daud. Kitabus Sunnan. 

Stewart, C. History of Bengal. 

Sulaiman Nadwi. Siratun Nabi. 

Terry, E. Travels C. U. L. 

Tripathi, R. S. Some Aspects of Mus- 

lim Administration. 

Tritton, A. S. The Caliphs and their 

Non-Muslim Subjects 

Wall Ullah, S. Hujjatul Balighah. 

Wilson, Sir Ronald. A Digest of Anglo- 

Muhammadan Law. 
Ed. A. Yusuf AH. 

Yusuf Ali, A. x. Koran. The Holy 

Quran. 

2. Medieval India. 

3. The making of India. 
Zia Uddin Barni. See Barni. 



"THE TENOR OF A QAZI'S FIRMAN/' 

"The order that issues forth like fate. 

"As in the number of our auspicious designs it 
is proper that the people of God should be conducted 
from the dark and narrow paths of error into the 
direct road of truth and reason, which intention 
can only be accomplished, when an upright and 
devout Judge vested with his powers shall be estab- 
lished in every city and country to unfold the door of 
virtue and justice before the faces of wicked and 
designing men. 

"The laudable qualifications being found in the 
dispositions of the learned in the laws, the extensive 
in knowledge, Eas-ul-Dien Mohommed, we have on 
that account, favoured him with the high and res- 
pectable office of Qazi of the city of Cabul, command- 
ing him. To give the necessary applications on that 
duty To observe the established course of the noble 
law in his enquiries To pass judgment in all dis- 
putes, and arbitrations according to the same noble 
law, nor permit the smallest differences in the case 
to pass unobserved To regulate his proceedings 
in such a clear and distinct manner, as if to-morrow 
were the day of examination on which every action 
must answer for itself. 

"Be it known to all rulers, and officers, and 
people, public and private, that the aforesaid learned in 
the law is confirmed Qazi of the above mentioned 



298 ADMINISTRATION OF JUSTICE IN MEDIEVAL INDIA 

city of Cabul; that they shall pay him all due respect 
and revere his decisions totally and particularly, 
paying all due obedience to his orders, by such offi- 
cers as he shall appoint for executing the law; receiv- 
ing such of his words as are agreeable to the noble 
law into the ears of their understanding. In this 
business proceed according to order, and let none 
oppose it." 

Dow III, pp. 411-412. 

"TENOR OF A CUTWAL'S FIRMAN." 

"As a particular account of the capacity, ex- 
perience and bravery of Mohommed Bakar hath 
reached our high and sacred presence, we have of our 
royal favour confirmed and appointed him Cotwal 
of the city of Dowlatabad. He is commanded to 
make the practice of fidelity and truth his study, that 
he may be able to execute the duties of his office 
with propriety. He is to take care that the guards 
and watches of that city be strictly kept, that the 
inhabitants may be secured and protected in their 
persons and property, that they may bless our happy 
reign and pray for its duration. 

"He is to use his utmost endeavours that no 
thieves, gamblers, or other miscreants shall make 
their appearance, and that no nuisances shall be per- 
mitted to remain in the streets or before the door 
of any person. That no insidious old women, pimps 
or jugglers, who lead the wives and daughters of 
honest men into the ways of evil be tolerated, but 
have their hands shortened from such iniquitous 
practices. That he will as much as possible prevent 



TENOR OF A CUTWAI/S FIRMAN 299 

forestalling of grain, provisions, and other things, 
that the markets may be kept low, nor the people 
suffer from any combinations amongst the Bunias. 
What events may arise of a particular nature, he is to 
send a true and faithful account of them to the pre- 
sence. 

"Be it known to all Mutasaddies and officers, and 
all men public and private of the above mentioned 
city, that the aforesaid Mohommed Bakar is con- 
firmed and appointed Cotwal and, that all quarrels 
and vexatious disputes which may arise in that city 
shall be referred to his decision, and that they shall 
submit to his arbitration according to the established 
customs of the empire. Let this business be pro- 
ceeded on according to order, and let none oppose 



it." 



DOW in, pp. 412-413. 






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GENERAL INDEX 



Aba, 253 

Abbaside, influence of institu- 
tions, 100. 

Abbaside, Caliphs, 185. 
Adabul Harb, 39. 
Adalat Khanah, 250. 
Adalatul Aliah, 203. 
Administration, general, 102-104 
Admissions, 216, 217, 218. 
Adultery, prosecution in, 229, 

232, 233, 235. 
Adjournments, 219. 
Ahadith, 28. 
Ahkamus Sultanyah, 38. 
Ain-e-Akbari, 41. 
Akbar, 160, 180, 186, 195, 201. 
Akbar Namah, 45. 
AkhbarNawis, 166. 
Al Mawardi, 38. 
Alamgir Namah, 41, 45. 
Alberuni, 50. 
Alexander Dow, 32, 53. 
Ali Shahab Hamdani, 39. 
Amal-e-Saleh, 45. 
Amalguzar, 166, 171. 
Amils, 121, 130. 
Amins, 157, 167, 218. 
Amin Karkuns, 171. 
Amin-e-Parganah, 168. 
Amirdad, 160. 
Appeals, 203, 204, 205, 207. 

abatement of, 207. 

on interlocutory points, 34. 

powers of courts in, 205. 

procedure in, 200. 

second Appeals, 206. 
Appellate court, powers of, 205. 
Appointment of Qazis, 81. 



announcement 
of, 85. 

Arbitration, 195-196. 
Aradasht, 46. 
Aurangzeb, 34, 43, 44. 

Legal Reforms of, 

266-268. 
Authority in deciding cases, 70- 



B 

Bahadur Shah Namah, 163, 191. 
Bail, 208, 209, 210. 
Baillie, 43. 
Baqiatus Salehat, 37. 
Bar Associations, 191, 192. 
Barids, 263. 
Barqandaz, 243. 
Bernier, 50, 51. 
Bonds, 239. 

Brahman or Shastri, 60, 61. 
Bribes, 243, 263. 
Burhanuddin Ali bin Ali B. 
Marghinani, 40. 



Canon Law, 227, 234. 
Cases, Civil Procedure, 181, 182, 
199. 

COSt Of, 199, 200. 

compounding, 196, 197. 

criminal, 201. 

records of, 186. 

reports of, 188-189. 

transfer of, 180-181. 
Chaudhri, 244. 
Chaukidar, 245. 
Chauth, 243, 244. 



302 



INDEX 



Chief Justice, 107-116, 143-146. 

influence of 1 09- 1 1 1 . 

of Sultan of Delhi, 114, 
115. 

other functions of, 109. 

removal of, 1 1 1, 112. 

salary of, in, 112. 

selection of, 107, 108. 

staff attached to the court 

of, 115, 116. 

Commentaries by Muslim Ju- 
rists, 38. 

Compounding offences, 196-197. 
Conditions in Medieval India, 5 7 
Confession, 217, 218. 
Courts, at the Centre (during 

the Sultanate), 104-116. 
Court, contempt of, 230. 

at the district head- 
quarters, I2O-I2I. 

dress, 253. 

fee, 197, 198, 199. 

holiday, 252. 

hours, 251, 252. 

5 , house, 250. 

at Parganah head-quar- 
ters, 123-124, 167, 170. 

personal enquiry, 184. 

at Provincial head-quar- 
ters, 116-120. 
Courts supervision over, 263. 

vacation, 252. 

in army, 125-126. 

in villages, 124-125. 
Courts at the Centre (under the 

Mughals), 135-138. 
Courts at the district head- 
quarters, 139, 152, 1 66. 
Courts at the Parganah head- 
quarters, 139-140. 
Courts at the Provincial head- 
quarters, 116 138-139, 148, 

152. 

Courts in the Villages, 140. 
Courts, grades of, 170-175. 
Courts, Honorary, 168. 
Cow sacrifices, 239. 
Custody, 208. 



D 

Dad-bak, 116, 119, 120, 121, 160, 

178, 198. 
Daftari, 157. 
Daroghae Adalat, 120, 151, 152, 

159,167. 

Adalatul Aliah, 174. 

Adalat Diwani, 174. 

Darshan, 273. 
Darul Adi, 250. 
Darul Harb, 227. 
Darul Qaza, 250. 
Dastur, 44. 
Dasturul Amal, 195. 
DasturulAmal Adalathae Ta'l- 

luqah, 44. 

Dasturul Amal Alamgiri, 41, 44. 
Dasturul Amal Shahenshi, 44. 
Decrees, execution of, 199, 200. 
Department of Justice, 104. 
Disposal of business by Courts, 

253-262. 

Diwan, 171, 172, 174. 
Diwan e Ala, 148. 
Diwan e Mazalim, 268. 
Diwan e Subah, 116, 120, 151, 

152. 
Dyath, 226. 



East India Company, 193, 195, 

199. 

Ehad, 212. 

Emergency powers, 227. 
.Emperor's Court, 142, 143. 

Officers at- 

tached, 143. 
Enayetullah, 49. 
Equity, 75. 
Estoppel, 219. 
Evidence, circumstantial, 215. 

on Commission, 220. 

direct, 214, 215. 

documentary, 2 1 6. 

hearsay, 214. 

oral, 216. 



INDEX 



303 



recording of, 219. 
rules of, 212, 222. 
Executive Officers, Liability of, 

*37- 
Extenuating circumstances, 234, 

235- 



Fakhruddin Mudabbir, 39. 
Farameenus Salateen, 37. 
Farmans, 72, 73. 
Fatawa e Alamgiri 

completion of, 41, 42. 
Jahandari, 39-40. 
Faujdars, 121, 123, 164-165, 167, 

171, 173, 174, 179, 183, 194, 

200, 209, 214, 245. 
Faujdar-e-Parganah, 167. 
Fazl bin Rozbahan Isfahan!, 38. 
Fiqh e Firoz Shahi, 40, 42. 
Foreign travellers, 50. 
Fuyuzul Qawanin, 46. 



Gao Takyah, 250. 
Governors, 117, 118. 
Grady, 40. 
Ghulam Husain, 49. 

H 

Hanafi Law, preponderance of, 

70,71. 

Hazaqat Khan, 52. 
Headman,, 169. 

various names of, 

169, 170. 
Hidayah, 40. 
Hindu and Muslim systems 

compared, 63. 
Hindu Judicial administration, 

58-59. 

Hirasat, see Arrest, 208. 
Huquq Ullah, 223, 226. 



I 



Ibn Batuta, 47. 

Ibn Khaldun, 39. 

Identification, 220. 

Ijma, 28. 

Imad Uddin Muhd. bin Qasim, 

25- 

Imprisonment, Civil, 210. 

Independence of Law Courts, 68- 
70. 

Influence of Abbaside institu- 
tions, 100-102. 

Investigation, 211. 

Inquests, 194. 

Insha, 46. 

Integrity, of Judge, 262. 

Interlocutory points, Appeals 
on., 34, 205. 

Iqrar, 212. 

See Admission also 

Irtedad, 224. 

Islamic Law, its introduction in 
India, 25. 

Itteham-e Zina, 224. 

Izhar, 219. 



J 



Jails, 225, 229, 247, 248. 

Jallads, 201. 

Jahangir, 184, 201, 207, 217. 

Jam e-us Saghir, 63, 

Jehad, 228. 

Jirah (Cross-Examination), 219. 

John Marshall, 52. 

Judge-made Law, 28. 

Judicial and Executive, separa- 
tion of, 247. 

Judicial administration in Medie- 
val India, its study, 26. 

Judicial administration, similari- 
ty in Hindu and Muslim sys- 
tems, 63, 64. 

Judicial administration, system 
under the Sultans, 86, 132. 

Judicial administration, its fea- 
tures, 126-128. 



304 



INDEX 



Judicial administration, system 
under the Mughals, 133-175. 

Justice, conception of, in Mus- 
lim states, 65. 

Justice, responsibility to God in, 
67, 68. 

K 

Kalimat ut Tayyebat, 46. 

Karori, 168, 171. 

Katibs, 157, 219. 

Kitabul Hakam, 185. 

King's original Jurisdiction, 80. 

King's position, 78. 

Kitab e Adabul Qazi, 40. 

Kitabul Ikhtyar, 52. 

Kitabul Khiraj, 39. 

Kitab us Sunan, 63. 

Kotwals, 121, 123, 124. 

judicial function of, 

i6 5 . 

Kotwals, Mannucci on, 165. 
Dow on, 165, 166, 168, 

173, 182, 194, 200, 201, 202, 

209, 241, 247, 248, 263, 267. 

Kotwals, duties of, 241, 242, 

243. 

Kotwal e Parganah, 171. 
Kotwal e Shaher, 171. 
Khufyah Nigars, 263. 



Law, classification of, 71. 

canon, 71. 

common, 72. 

customary, 74. 

courts, their independence 

in Muslim States, 68-70. 
Law, Judge-made, 28. 

notification of, 76. 

Quranic, 28. 

rigour of, 87. 
Law, respect for, 100. 

sacred, 28. 



Legal learning, monopoly of 

Brahmans, 60, 61. 
Legal reforms of Aurangzeb, 

266. 
Limitation Law of, 195. 

M 

Maasir Alamgiri, 43-48. 

Ul Um'ra, 50. 
Majlis e Qazi, 250, 
Mahekmae Qazi, 104. 
Manucci, 50, 51, 52. 
Manrique, 50, 52. 
Manu, 63. 
Manu Samhita, 63. 
Masnad e Qazi, 251. 
Medieval India, conditions in, 

57; 

Medieval State, its character, 61. 
Minhajut-Talebin, 63. 
Mir Imarat, 265. 
Mir Adi, 41, 148, 158, 162, 251. 
Mirat e Ahmadi, 43, 44, 49. 
Mirdahas, 158. 
Mohafiz Khanah, 35. 
Mohtasib, 76, 115-116, 119, 
147, 148, 163, 170, 182, 183, 

211. 

Mohtasib e Baldah, 163. 

Mohtasib e Parganah, 167. 

Monscrrate, 50. 

Moqaddams, 244. 

Muchalka, 239. 

Muchalka Nawis, 158. 

Mughals, judicial system under 

the, 132-175. 

Mufti, 115, 119, 147, 163, 167, 

172, 174, 178, 188, 280. 

appointment of, 163, 167. 
Munsif e Munsifan, 131. 
Murafeah, 203. 
Murafeah e Saniah, 206. 
(See Appeals) 
Muslim Law, 27, 28. 
Muslim constitutional law, 

writers on, 26. 



INDEX 



305 



Muslim institutions. Its intro- 
duction in India, 2 5 . 
Muzakki, 184. 
Muwatta, 63. 

N 

Naibs, 243. 

Nazim e Subah, 172, 174. 

Nazir, 157. 

Nizam Ul Mulk Tusi, 38. 

Nizam, Shaikh, 4, 42. 

Non-believers, 90. 

Non-Muslims, rights of, 90-94. 

O 

Ordeal, trial by, 194. 
Orderlies, 157. 
Original authorities, 37. 
Original jurisdiction of King, 
80. 

P 

Panchayets, 62, 63, 125, 130, 
168, 169, 170. 

Metcalfe on, 168. 
Pandits (Shastri), 163. 
Pauper suits, 192. 
Parganah, 244. 
Peshkars, 156, 157. 
Police, 289, 243, 244. 
Position of women, 94. 
Precedents, 75. 
Prerogative of mercy, 79-80. 
Procedure in courts, 176-211. 

,, in Company's Courts, 

3' 
Procedure, in prosecution in 

general by State, 229. 
Preventive measures, 238-239. 
Prison system, 247. 
Punishment, for violation of 
right in general, 223. 



Qanun e Urf, 73, 74. 



Qanun e Shahi, 72, 73. 
Qarinah (evidence), 215. 
Qanungoe, 171, 173. 
Qataut turq, 234. 
Qazi, 41, 120, 121, 122, 173-176, 
178, 180, 184, 188, 192-198, 

203, 207, 2IO, 211, 2l8, 220. 

Qazi e Askar, 125, 126, 147. 

Office, 87, 116, 125-126. 

e Parganah, 123-124, 166. 

e Sarkar, 121, 152, 156, 

171-176-178. 
Qazi, e Subah, 118-119, 150- 

151. 
Qazi, distinguished from Mir 

Adi, 160-161. 
Qazi, general functions of, 

85-87. 

Qazi, qualifications of, 82-84. 
Qazi Minhaj Us Siraj Jurjani, 

112, 114. 
Qaziul Quzat, 109-113, 143, 146, 

172, 176, 177, 203, 205. 
Qaziul Quzat, power of appoint- 
ment of, 
Qaziul Quzat, Judicial Officers, 

82, 163. 

Qisas, 196, 201, 226. 
Qutub Uddin Aibak, founder of 

Muslim administration, 25. 



R 



Rahdars, 245. 
Raziah Sultan, 209, 214. 
Rebels, 228. 

Record Room, Register, 34-35. 
Reference, Revision, 205, 207. 
Reforms of Sher Shah, 128-132. 
Remand of cases, 205. 
Remand, to custody, 266. 
Res Judicata, 219. 
Respect for law, 100. 
Responsibility to God, 67. 
Revision, 207. 
Review, 208. 

Rioting, prosecution for, 229, 
239. 



306 



INDEX 



Rights of non-believers, 70. 
Rigour of the law, 87. 
Rulers and Law Courts, 68. 



Sadr, duties of, 164. 
ejahan, 105. 
eKul, 105. 
e Subah, 120. 

Sadrus Sudur, 164, 167, 178, 
211. 

Sahibul Majlis, 217, 157. 

Sahih Muslim, 63. 

Saqi Mustaid Khan, 48. 

Saraes, 246. 

Sawars, 243. 

Sawaneh Nigar, 265. 

Seaports, 141. 

Search, 211. 

Security (See 'Bail), 208, 210. 

Seir Ul Mutakhirin, 49. 

Sentence of death, 202, 233. 
commutation of, 202. 
,, enhancement to, 202, 
203. 

Separation of Judicial and Exe- 
cutive functions, (See Judiciary 
and Executive) 

Shahjahan, justice of, 44, 48, 
162, 180, 191, 192, 201, 214, 
215. 

Shaikh, Nizam, (See Ni%am)> 
4,42. 

Shara' adherence to, 98-100. 

Sher Shah's reforms, 128, 132. 

conception of jus- 

tice, 65, 67, 193. 

Shiqahdars, 44, 124, 168, 244. 

Sijii, 187. 

Sikander Lodi, justice of, 160. 

Sir Thomas Roe, 51. 

Slaughter of cattle, 240. 

Slave dynasty, founder of, 57. 

Slavery, 210. 

Sources of information, 36. 

Sovereignty, meaning of, 65. 

Spelling, note on, 16. 



State, suit against, 193. 

State versus the subject, 88-89. 

Subahdar, 176. 

Subut e Sharai, 266. 

Sultan, 21, 101. 

Sultanate, chief features of, 

126-127. 

Sulukul Muluk, 38. 
Sulukul Saltanath, 38. 
Supervision, by higher courts, 

263-265. 

Surveillance, 246. 
Syasat, 234. 



Tabqat e Akbari, 47. 
Tabqat e Nasiri, 45, 47. 
Taimur, 48. 
Tajul Maasir, 44. 
Tajwiz e Sani, 203. 
Tarikh e Ferishtah, 49. 

e Firoz Shahi, 47. 

,, ul Hind, 50. 
Terry Edward, 51. 
Thana, 244. 
Thanadar, 244, 248. 
Theft, 227, 229, 235, 238. 
Trial of cases by Hindus, 59-60. 
Treason, 233, 235, 236, 247. 
Tuhfae Akbar Shahi, 47. 
Turkish Empire, allegiance to, 

100, 195. 
Tuzuk e Jahangiri, 41. 

U 

Ulama, functions of, 179. 195. 
Usul Ul Usul, 77. 



Vakil, 183, 189-192, 267, 
Vakil e-Sarkar 

,, appointment of, 163. 

,, duties of, 163, 164, 218. 

fee of, 163, 191. 

e-Sharai, (See Vakil e 



INDEX 



307 



Sarkar), 163, 164. 
Vakil e Mutlaq, 192. 

us Saltanat, 192. 
Village assembly (See Panchayets), 

62, 63. 

W 

Waqa e Nigars, 166, 251, 263. 

Waqa e Alamgir, 45, 46. 

Waqa e Nawis, or Akhbar 

Nawis, 1 66, 245. 
Warren Hastings, 32, 40. 
Watandars, 245. 
Watch & ward, 245. 
Witness, competency of, 213, 



214, 220. 

Witness, women as, 214. 
Women, position of, 94. 



Yaqub Muzaffar Kirani, 40. 
Z 

Zabtah, 267. 
Zamanat (See Bail), 208. 
Zamindar, 169, 173, 174. 
Zia Uddin Barni, 39, 47. 
Zakhiratul Muluk, 39.